[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
PROTECTING AMERICAN EMPLOYEES FROM WORKPLACE DISCRIMINATION
=======================================================================
HEARING
before the
SUBCOMMITTEE ON HEALTH,
EMPLOYMENT, LABOR AND PENSIONS
COMMITTEE ON
EDUCATION AND LABOR
U.S. House of Representatives
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
HEARING HELD IN WASHINGTON, DC, FEBRUARY 12, 2008
__________
Serial No. 110-77
__________
Printed for the use of the Committee on Education and Labor
Available on the Internet:
http://www.gpoaccess.gov/congress/house/education/index.html
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COMMITTEE ON EDUCATION AND LABOR
GEORGE MILLER, California, Chairman
Dale E. Kildee, Michigan, Vice Howard P. ``Buck'' McKeon,
Chairman California,
Donald M. Payne, New Jersey Senior Republican Member
Robert E. Andrews, New Jersey Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia Peter Hoekstra, Michigan
Lynn C. Woolsey, California Michael N. Castle, Delaware
Ruben Hinojosa, Texas Mark E. Souder, Indiana
Carolyn McCarthy, New York Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts Judy Biggert, Illinois
Dennis J. Kucinich, Ohio Todd Russell Platts, Pennsylvania
David Wu, Oregon Ric Keller, Florida
Rush D. Holt, New Jersey Joe Wilson, South Carolina
Susan A. Davis, California John Kline, Minnesota
Danny K. Davis, Illinois Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona Kenny Marchant, Texas
Timothy H. Bishop, New York Tom Price, Georgia
Linda T. Sanchez, California Luis G. Fortuno, Puerto Rico
John P. Sarbanes, Maryland Charles W. Boustany, Jr.,
Joe Sestak, Pennsylvania Louisiana
David Loebsack, Iowa Virginia Foxx, North Carolina
Mazie Hirono, Hawaii John R. ``Randy'' Kuhl, Jr., New
Jason Altmire, Pennsylvania York
John A. Yarmuth, Kentucky Rob Bishop, Utah
Phil Hare, Illinois David Davis, Tennessee
Yvette D. Clarke, New York Timothy Walberg, Michigan
Joe Courtney, Connecticut Dean Heller, Nevada
Carol Shea-Porter, New Hampshire
Mark Zuckerman, Staff Director
Vic Klatt, Minority Staff Director
SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR AND PENSIONS
ROBERT E. ANDREWS, New Jersey, Chairman
George Miller, California John Kline, Minnesota,
Dale E. Kildee, Michigan Ranking Minority Member
Carolyn McCarthy, New York Howard P. ``Buck'' McKeon,
John F. Tierney, Massachusetts California
David Wu, Oregon Kenny Marchant, Texas
Rush D. Holt, New Jersey Charles W. Boustany, Jr.,
Linda T. Sanchez, California Louisiana
Joe Sestak, Pennsylvania David Davis, Tennessee
David Loebsack, Iowa Peter Hoekstra, Michigan
Phil Hare, Illinois Cathy McMorris Rodgers, Washington
Yvette D. Clarke, New York Tom Price, Georgia
Joe Courtney, Connecticut Virginia Foxx, North Carolina
Timothy Walberg, Michigan
C O N T E N T S
----------
Page
Hearing held on February 12, 2008................................ 1
Statement of Members:
Andrews, Hon. Robert E., Chairman, Subcommittee on Health,
Employment, Labor and Pensions............................. 1
Prepared statement of.................................... 4
Kline, Hon. John, Senior Republican Member, Subcommittee on
Health, Employment, Labor and Pensions..................... 4
Prepared statement of.................................... 6
Additional submissions:
Letter, dated February 11, 2008, from the Union of
Orthodox Jewish Congregations of America........... 123
Prepared statement of the HR Policy Association,
Internet address................................... 124
McCarthy, Hon. Carolyn, a Representative in Congress from the
State of New York, prepared statement of................... 122
Statement of Witnesses:
Alchevsky, John I., National Volunteer Fire Council.......... 22
Prepared statement of.................................... 23
al-Suwaij, Zainab, executive director, American Islamic
Congress................................................... 89
Prepared statement of.................................... 91
de Bernardo, Mark, partner, Jackson Lewis, LLP............... 15
Prepared statement of.................................... 16
Foltin, Richard T., legislative director and counsel, office
of government and international affairs, the American
Jewish Committee........................................... 64
Prepared statement of.................................... 67
Additional submission: ``Organizations Supporting the
Workplace Religious Freedom Act''...................... 65
Foreman, Michael, on behalf of the Leadership Conference on
Civil Rights............................................... 17
Prepared statement of.................................... 18
Goldstein, Judy, speech therapist............................ 93
Prepared statement of.................................... 94
Gray, Michael, partner, labor and employment practice, Jones
Day........................................................ 78
Prepared statement of.................................... 80
Jones, Jamie Leigh, former Halliburton/KBR employee.......... 10
Prepared statement of.................................... 12
Norton, Helen, associate professor, University of Colorado
School of Law.............................................. 105
Prepared statement of.................................... 106
Piscitelli, Kathryn, Esq., USERRA practitioner............... 44
Prepared statement of.................................... 45
Robinson, Alfred, Jr., shareholder, Ogletree Deakins......... 24
Prepared statement of.................................... 26
Serricchio, Michael, former Air Force reservist.............. 35
Prepared statement of.................................... 37
Standish, James D., director of legislative affairs, Seventh-
Day Adventist Church World Headquarters.................... 96
Prepared statement of.................................... 98
Stittleburg, Philip C., National Volunteer Fire Council...... 32
Prepared statement of.................................... 34
Wood, George R., Esq......................................... 38
Prepared statement of.................................... 40
PROTECTING AMERICAN EMPLOYEES
FROM WORKPLACE DISCRIMINATION
----------
Tuesday, February 12, 2007
U.S. House of Representatives
Subcommittee on Health, Employment, Labor and Pensions
Committee on Education and Labor
Washington, DC
----------
The subcommittee met, pursuant to call, at 2:00 p.m., in
Room 2175, Rayburn House Office Building, Hon. Robert Andrews
[chairman of the subcommittee] presiding.
Present: Representatives Andrews, McCarthy, Tierney, Wu,
Sanchez, Sestak, Loebsack, Hare, Kline, McKeon, and Boustany.
Staff present: Aaron Albright, Press Secretary; Tylease
Alli, Hearing Clerk; Jordan Barab, Health/Safety Professional;
Carlos Fenwick, Policy Advisor for Subcommittee on Health,
Employment, Labor and Pensions; Michael Gaffin, Junior
Legislative Associate, Labor; Brian Kennedy, General Counsel;
Sara Lonardo, Junior Legislative Associate; Joe Novotny, Chief
Clerk; Cameron Coursen, Minority Assistant Communications
Director; Ed Gilroy, Minority Director of Workforce Policy; Rob
Gregg, Minority Legislative Assistant; Alexa Marrero, Minority
Communications Director; Jim Paretti, Minority Workforce Policy
Counsel; Molly McLaughlin Salmi, Minority Deputy Director of
Workforce Policy; and Ken Serafin, Minority Professional Staff
Member.
Chairman Andrews [presiding]. Ladies and gentlemen, if I
may have your attention, we will bring the subcommittee to
order. Thank for your attendance here this afternoon. We thank
our outstanding panels of witnesses. We are very glad to have
you with us.
American employment law is really focused on three
principles.
The first is the general rule that employees are at the
will of employers, unless there is a contract, collective
bargaining agreement, or rule to the opposite. So that means
the employer can do pretty much as the employer sees fit.
The second general principle is that there are some
exceptions to that first general principle, that an employer
may not discriminate on the basis of race, gender, national
origin, religion. And we have added to those exceptions some
principles that deal with discrimination against the person who
serves in the uniform of our country, in the military services,
and some other areas.
The third general principle is that, if a person has been
wronged in the field of employment discrimination, they should
have a remedy which makes them whole for that wrong.
The purpose of today's hearing is to look at some very
important current topical issues that deal with whether or not
we need to revise some of the rules that flow from those
general principles.
I want to say from the outset I think it is a consensus of
the committee that the three general principles are held in
broad agreement by the members of the committee. We are not
about reversing the doctrine of at will employment, we are
certainly not about undercutting the notion that discrimination
is a perverse phenomenon that we wish to retard, and we are not
about the notion that we want to any way subvert the rights of
people to recover if they have been wronged.
In fact, the opposite is true. We are interested in
exploring some instances where there is at least the question
raised of discriminatory treatment, and we are especially
interested in also the question of whether or not remedies that
exist are, in fact, adequate when there has been a finding of
discrimination against a person.
We will have two panels today.
The first panel will deal with three separate, but very
important questions.
The first has to do with remedies. If a person has, in
fact, been wronged, if there is a finding that a person has
been a victim, in the instance of our witness today, of sexual
harassment and gender discrimination, is that person afforded a
true and complete remedy if that remedy is limited by a
mandatory binding arbitration clause? It is a very important
question. We are going to hear some testimony on it from both
sides.
The second issue we are going to take a look at is those
who serve our country in a volunteer capacity, who serve in
fire, EMS, other public safety professions, because, although
these individuals do not receive monetary compensation, they
are absolutely professionals in every respect of the word.
What happens to one of them when they respond to a huge
emergency, like a Hurricane Katrina situation, and then attempt
to return to work and find out that there is no work to which
they can return or that they are not permitted to go in the
first place? We will be addressing that question.
Third, this panel will take a look at the issue of those
who voluntarily wear the uniform of our country in the armed
forces. We have in place a statute that is designed to assure
those individuals that when they voluntarily don the uniform of
the United States and serve in the military, the civilian job
that they left will be there for them when they return.
Times have changed in two respects which caused us to take
a look at this general principle.
The first is the huge reliance our country is placing on
our Guard and Reserve. There are hundreds of thousands of
Americans who have faced extensive deployments and who are
members of our Guard and Reserve and serving with great courage
and effectiveness around the world. So the long deployments
used to be very much the exception and not the rule. Now they
are becoming the rule and not the exception, and it raises that
issue.
And then the second thing that has changed is the nature of
our workforce and simply returning to a job, which may not
adequately compensate them, regardless of their standing in a
firm. What is necessary to bring that person back to the place
that he or she left when they went to serve our country
overseas or, frankly, serve our country here at home, if the
deployment would leave them here at home?
The second panel today will deal with the question of the
extent to which people are protected against religious
discrimination in the workplace, and it will focus on the
question as to what extent employers who are required by law to
give reasonable accommodations are giving reasonable
accommodations.
The phrase ``reasonable accommodations'' has been
substantially litigated, and there is a point of view that the
phrase has been watered down to the point where it means very,
very little so that any de minimis expression by an employer of
inconvenience now serves to stand as a substantial burden which
would then excuse the employer from making accommodations to a
person because of his or her religious preference. So we are
going to take a look at that issue in the second panel.
Obviously, this is a sweeping array of issues, and not all
of them are related to each other, except that they fall under
the rubric of employment discrimination law.
I want to assure my friend, the ranking member, and all the
members of the committee that we will approach these issues
with due deliberation. I regard this as a first hearing, an
initial round of analysis of these issues, because they are
quite complex, they do not easily lend themselves to easy
solutions.
There have been some points of consensus. Several members
of this committee are co-sponsors of legislation that would
deal with the problem of volunteer first responders being able
to return to their place of employment. It has rather broad
bipartisan support.
An amendment similar to that bill was adopted by a wide
margin in the context of the Homeland Security Authorization
bill earlier this year. There is significant bipartisan support
for legislation that would address the question of religious
discrimination, as we will hear in the second panel.
But I understand there are significant differences over
many of these issues, and we are going to start the process of
airing these views out today.
I would just conclude by saying that I view this as an
exercise in applying trusted principles to new situations. I do
not think we want to undermine the principles from which we
started, but we want to understand how those principles apply
to some very difficult and very trying situations that we will
hear about from many of the witnesses here today.
So I thank the panel for their participation.
I am at this point going to turn to my friend, the ranking
member of the subcommittee, for his opening statement, and I
would say any other members who wish to submit an opening
statement may do so in writing, and it will be made a part of
the record.
Mr. Kline?
[The statement of Mr. Andrews follows:]
Prepared Statement of Hon. Robert E. Andrews, Chairman, Subcommittee on
Health, Employment, Labor and Pensions
Good morning and welcome to the HELP Subcommittee's hearing on
``Protecting American Employees from Workplace Discrimination.''
Today the Subcommittee will focus its attention on anti-
discrimination protections for our service-members, volunteer
firefighters and emergency medical personnel (EMS) personnel,
individuals of a particular faith and all Americans with respect to
mandatory arbitration clauses in employment contracts. Whether it is a
reservist returning home from Afghanistan who has been demoted or a
volunteer firefighter whose employer prohibits him from assisting in
the rebuilding Louisiana after Hurricane Katrina or a Muslim American
who is denied a job because of her hijab ``injustice anywhere is a
threat to justice everywhere,'' and therefore, we have a responsible to
not allow these instances to go unchecked.
The specific issues we will address today include whether mandatory
arbitration clauses in employment contracts usurp an employee's right
to judicial review for statutory claims, whether there is a lack of
employment protections for volunteer firefighters and EMS personnel,
whether there are loopholes in the Uniformed Services Employment and
Reemployment Rights Act (USERRA) and whether Title VII of the Civil
Rights Act needs to be strengthened to further provide protection for
individuals of a particular religion.
A rising number of employers require their employees to sign
mandatory arbitration agreements. These agreements force employees to
seek redress for any employment dispute through an arbitrator or panel
of arbitrators rather than by a judge or jury. While employers see this
as a faster and less expensive way to address disputes many employee
rights advocates believe these agreements put workers at a huge
disadvantage.
We rely on our volunteer firefighters and EMS personnel as the
first line of defense in a wide array of emergencies across the country
every day including fires, emergency medical incidents, terrorist
events, natural disasters, hazardous materials incidents, water rescue
emergencies, high-angle and confined space emergencies, and other
general public service calls. Despite the invaluable help these first
responders provide to our communities, they are often put in the
position of having to choose between their jobs and responding to a
major disaster.
USERRA was signed into law by U.S. President Bill Clinton on
October 13, 1994 in order to protect the civilian employment of non-
full time military service members in the United States called to
active duty. In spite of these protections, discrimination in the
workplace persists. According to a Department of Defense report, more
than 33,000 reserve service members from 2001 to 2005 have complained
to the agency about a reduction in pay, benefits or even failing to
receive prompt reemployment as required by law.
Although Congress amended Title VII of the Civil Rights Act in 1972
to require employers, in cases of religious discrimination, to provide
a reasonable accommodation for employees' religious beliefs,
individuals continue to get fired, demoted or not hired by an employer
due to their religious affiliation without recourse.
I thank all of the witnesses for their testimony today and look
forward to having a robust debate on the abovementioned issues.
______
Mr. Kline. Thank you, Mr. Chairman.
Good afternoon. Welcome to each of our many, many
witnesses.
A particular welcome to Mr. Wood, from Edina, Minnesota.
Always nice to have a Minnesotan. And we are actually fleeing
cold weather to come here in this 25-degree weather. So it is
good to see you.
We have an exceedingly full schedule this afternoon, and I
appreciate the chairman's interest in examining this range of
issues relating to workplace discrimination. Each of these
issues today is important, both to us as policymakers and to
the stakeholders and parties whom they impact.
The topics before the subcommittee this afternoon range
from broad, sweeping changes in federal employment law to
focused, almost rifle-shot tweaks to existing statutes. Each
deserves a thorough examination and thoughtful consideration.
As a result, I feel compelled to take this opportunity to
raise my concerns with a number of issues surrounding this
particular hearing, and I do that, Mr. Chairman, mindful of the
fact that you and I are getting ready in the near future to
spend several days together traveling to a remote corner of the
world and traveling in close quarters.
Let me say first----
Chairman Andrews. I get to decide who comes back, John.
[Laughter.]
Mr. Kline. We will see. We will see.
First, I am concerned the subcommittee would convene a
hearing on issues of such importance at 2:00 in the afternoon
on a day when members are not scheduled to be back in
Washington for votes until 6:30 this evening. As my friend and
colleague from New Jersey knows, it is perfectly within the
majority's right to schedule hearings as they see fit.
However, as he also knows the majority leader sets the
House voting schedule weeks in advance, allowing members to
make firm commitments back in their district. Members are
already faced with numerous competing demands on their time and
plan their business back home in their districts according to
that schedule. Sometimes a half a dozen of our members are able
to attend a hearing. Other times, depending on a range of other
commitments, it is just one or two of us.
And I remember one occasion, Mr. Chairman, when the only
person here was Senator Ted Kennedy for over an hour. I am not
going to let that happen again.
The choice to attend all or part of a hearing should be for
the member to determine, and I worry that by scheduling
hearings on a day when votes do not begin until the evening, we
do a disservice not only to those members, but to the
witnesses, some of whom have traveled halfway across the
country to appear before us today.
As a matter of substance, I am concerned that today's
hearing is spreading our focus too thin. As I mentioned
earlier, some of the items before us represent potentially
major changes to employment law.
For example, the wholesale elimination of employment
arbitration is a proposal that would affect millions of workers
and employers. Others are more focused on nuanced tweaks to
statutes which have been on the books for years, such as the
very specific changes to USERRA that we will hear discussed
today.
Some of these proposals have enjoyed broad bipartisan
support--I am proud to be a co-sponsor on a bill that you have
on one of these efforts--while others, I expect, will break, as
is too often the case, very cleanly on party line.
By the way, Mr. Chairman, I want to take this opportunity
again to express my displeasure with what I think is an
institutional problem here. It is not a Republican problem or a
Democrat problem. Or, actually, it is both. And that is how we
get witnesses for these hearings.
Unfortunately, when the Republicans were in the majority,
two or three times as many of the witnesses were brought
forward by Republicans, and under a Democrat majority, it is
two-to-one or three-to-one Democrat witnesses, and I think, on
some of these issues, we really ought to hear a more balanced
presentation.
And so I would hope as we go forward, we can make it work
to make this a little bit more balanced. I do not know if that
is the case here today, but it is so often the case.
I understand that this is an election year, and our
schedule will be increasingly limited as the year goes on. I
also understand the chairman's desire to engage the
subcommittee fully on a range of issues. However, I remain
concerned we are trying to cram so many disparate issues into
one hearing with limited opportunity for member engagement.
And to that end, Mr. Chairman, I was very pleased to hear
you say that you assume that this is a first step towards
evaluating this, and we are not going to put a check in the
block for holding the hearing when we have jammed all this
together.
And with those remarks, Mr. Chairman, again, I want to
welcome the many witnesses, and I yield back the balance of my
time.
Prepared Statement of Hon. John Kline, Ranking Republican Member,
Subcommittee on Health, Employment, Labor, and Pensions
Good afternoon, Mr. Chairman, and welcome to each of our witnesses.
We have an exceedingly full schedule this afternoon, so I will keep my
remarks brief.
I appreciate today's hearing, and the Chairman's interest in
examining a range of issues relating to workplace discrimination. Each
of the issues we will examine today is important, both to us as
policymakers, and to the stakeholders and parties whom they impact. The
topics before the Subcommittee today range from broad, sweeping changes
in federal employment law to focused, almost ``rifle-shot'' tweaks to
existing statutes. Each deserves a thorough examination and thoughtful
consideration.
As a result, I feel compelled to take this opportunity to raise my
concerns with a number of issues surrounding this hearing.
First, I am concerned that the Subcommittee would convene a hearing
on issues of such importance at two o'clock in the afternoon, on a day
when Members are not scheduled to be back in Washington for votes until
six-thirty this evening. As my colleague from New Jersey knows, it is
perfectly within the Majority's right to schedule hearings as they see
fit. However, as he also knows, the Majority Leader sets the House
voting schedule weeks in advance. Members are already faced with
numerous competing demands on their time and plan their business back
home in their districts according to that schedule. Sometimes a half
dozen of our Members are able to attend a hearing. Other times,
depending on that range of other commitments, it's just one or two of
us.
But the choice to attend all or part of a hearing should be for the
Member to determine. I worry that by scheduling hearings on a day when
votes do not begin until the evening, we do a disservice not only to
those Members, but to the witnesses (some of whom have traveled halfway
across the country) who appear before us.
As a matter of substance, I am concerned that today's hearing is
spreading our focus too thin. As I mentioned earlier, some of the items
before us represent potentially major changes to employment law. For
example, the wholesale elimination of employment arbitration is a
proposal that would affect millions of workers and employers. Others
are more focused or nuanced tweaks to statutes which have been on the
books for years, such as the very specific changes to USERRA (``you-
serr-uh'') that we will hear discussed today. Some of these proposals
have enjoyed broad, bipartisan support, while others I expect will
break very cleanly on party lines.
I understand that this is an election year, and that our schedule
will be increasingly limited as the year goes on. I also understand the
Chairman's desire to engage the Subcommittee fully on a range of
issues. However, I remain concerned that by trying to cram so many
disparate issues into one hearing, with limited opportunity for Member
engagement, we risk becoming ``jacks of all trades, masters of none.''
I especially raise this point with respect to some of the more
sweeping policy proposals before us for the first time today. I want to
make myself perfectly clear--if the Subcommittee or the full Committee
intends to move forward on any of these proposals--I hope they will not
suggest that fifteen minutes of testimony, sandwiched between three
other issues, represents the thorough examination of issues that the
regular order hearing process is intended to provide.
In closing, I am concerned with the way this hearing has come
together today. I hope that going forward we can work together to
ensure that the important business of this Subcommittee, as well as the
time and presence of our witnesses, is given the respect it deserves. I
look forward to today's testimony and yield back my time.
______
Chairman Andrews. I thank my friend.
I did want to respond to a couple of the comments.
First of all, I did mean what I said. This should be a
first step in a very deliberate process because there are a lot
of complicated issues here.
Second, as far as the partisan breakdown of witnesses, as I
read it, there is one very noncontroversial bill, and I do not
think either of our firefighter representatives would be
partisan witnesses. There is broad bipartisan support for that
bill.
On the religious issue, I understand there are flight-delay
issues, but we were careful to be sure that Mr. Souder who is a
co-sponsor of the bill will have an opportunity to speak. I
understand he cannot make it, but he had that opportunity. So I
am cognizant of that.
Third, I would say about the timing, you know, I am
sensitive to that. The problem that we wrestle with--and the
gentleman knows this--is that we want to have a hearing that
covers a lot of topics, or at least cover some topics in depth,
we get interrupted by the voting schedule, and it can really
fracture a hearing in such a way we cannot have a very cohesive
dialogue. So the gentleman is right.
One tradeoff is that some of the members cannot make it
because of other commitments. The tradeoff, though, is we do
have a chance to have an uninterrupted cohesive discussion
which I hope that we will be able to have today.
But I do take the gentleman's comments in the spirit of
cooperation and will attempt to respond accordingly. So we have
a good trip to faraway places this weekend, too.
I am going to begin by introducing the witnesses, but we
have a colleague and friend from Texas who is going to
introduce one of our witnesses.
What I would like to do is read the biographies, Mr. Poe,
of the other witnesses, and I know you have a constituent that
you want to introduce which we will happily be able to do.
Michael Foreman, who will be our second witness, is the
deputy director of legal programs and director of the
Employment Discrimination Project for the Lawyers Committee for
Civil Rights under the Law. He is also the Lawyers Committee
representative on the Leadership Conference of Civil Rights
Employment Discrimination Task Force.
Before joining the Lawyers Committee, Mr. Foreman was
acting deputy general counsel for the United States Commission
on Civil Rights. He earned his bachelor's degree from
Shippensburg State College in Pennsylvania and his JD from the
Duquesne University School of Law.
Welcome, Mr. Foreman.
Mr. John Alchevsky is a volunteer firefighter in the Town
of Jackson Township, Ocean County, New Jersey, home to the Six
Flags Amusement Park, which I am sure is a challenge for the
firefighting community--I have been there many times--and a lot
of good outlet stores, too.
He is a life member of the Cassville Volunteer Fire
Company, currently serves as chief of that company. He joined
the Cassville Company as a junior firefighter when he was 13
years old, and since then, has served in all the company's
executive and command staff line officer positions.
He also serves as a captain in the New Jersey Department of
Corrections, a very difficult job, an organization he has
served for over 23 years.
Welcome to a fellow New Jerseyian, Mr. Alchevsky.
Alfred Robinson, Jr., is a shareholder with the firm of
Ogletree Deakins, specializing in governmental affairs, labor
and employment law, and litigation. Before joining the Ogletree
firm, he was the acting administrator of the Wage and Hour
Division of the United States Department of Labor. Mr. Robinson
also served as a member of the South Carolina House of
Representatives from 1992 to 2002.
Mr. Wilson, I am sure, would be pleased to know that.
And Mr. Robinson received his Bachelor of Science degree
from Washington and Lee University in 1977 and his JD from the
University of South Carolina in 1981.
Welcome, sir.
Philip C. Stittelburg--excuse me, Chief--is chairman of the
National Volunteer Fire Council. He is a member of the
Wisconsin State Firefighters Association and has served as
chief of the LaFarge, Wisconsin, Fire Department for 25 years.
Chief Stittelburg is a legal counsel to the NVFC, the
LaFarge Fire Department, and the Wisconsin State Firefighters
Association. He previously served as NVFC foundation president
for 12 years.
Chief, welcome. It is good to have you.
Michael Serricchio is a former employee of Wachovia Bank
and a sergeant in the Air Force Reserve. Mr. Serricchio's unit
was called to duty shortly after September 11, 2001, and he
served a 2-year tour in Saudi Arabia.
Welcome, and thank you for your service to our country.
Mr. George Wood is an employment specialist attorney with
the law firm of Littler Mendelson where he focuses on
discrimination and other litigation, client counseling and
training, and other labor law issues. Mr. Wood served as law
clerk to the honorable Douglas K. Amdahl, chief justice of the
Minnesota Supreme Court.
Mr. Wood earned his BA from St. Olaf College in 1982 and is
JD from the William Mitchell College of Law.
Mr. Wood, welcome.
And, finally, Ms. Kathryn Piscitelli?
Ms. Piscitelli. Yes.
Chairman Andrews. I got it. It is a New Jersey name.
She is a labor and employment lawyer with the firm of Egan
Lev & Siwica in Orlando, Florida. Ms. Piscitelli is also a
member of the Florida Chapter of the National Employment
Lawyers Association, and she served as chair of the National
NELA's USERRA, meaning the Soldiers and Sailors Relief Act,
Task Force in 2004.
Ms. Piscitelli has spoken on numerous occasions about
USERRA and fair employment practices. She earned her BS from
Northern Illinois University in 1975 and--another Duquesne
lawyer--earned her JD from Duquesne University in 1983. This is
the day of the Iron Dukes on the panel, I guess, today.
Now, before we get to Representative Poe's introduction,
the written statements of each of the witnesses have been
entered into the record without objection. So we have had the
chance to read what you have had to say.
We would ask if you would provide us with a succinct 5-
minute summary of your point of view. There is a box of lights
in front of you. When the green light is on, it means you are
on. When the yellow light goes on, it means you have 1 minute
to wrap up your testimony. When the red light goes on, we would
ask you to wrap up as quickly as you can.
The reason we would like to do this is we have a lot of
witnesses today, we want to hear from each of them, and we want
the members present to be able to ask questions and engage in
dialogue with the witnesses.
So we are very pleased to recognize--I guess it was Judge
Poe before he came here. Is that correct?
Mr. Poe. I have been called worse, Mr. Chairman.
Chairman Andrews. Sherriff or a judge?
Mr. Poe. Judge, yes.
Chairman Andrews. In Texas. And he has done a lot of good
work on some criminal justice issues, I know, since he has
joined the House.
Second term for you, Judge, is it?
Mr. Poe. That is correct.
Chairman Andrews. And he is going to introduce Ms. Jones
who is our first witness.
So, after that happens, Ms. Jones, you are welcome to start
your testimony.
Mr. Poe. Thank you, Mr. Chairman, Ranking Member Kline. I
appreciate the opportunity to be here.
Thank you for allowing me to introduce a brave, young
woman, and her name is Jamie Leigh Jones.
Two-and-a-half years ago, Jamie Leigh Jones--her dad called
my office in Texas because I represent her and her dad here in
the United States Congress. Her dad was distraught and informed
me that 20-year-old Jamie was drugged and raped by her KBR
coworkers in Iraq and that her own employer was holding her
hostage for more than 24 hours. Jamie's dad called me and asked
for immediate assistance.
My staff and I contacted the United States Department of
State that oversees citizen services, and within 2 days, the
State Department dispatched two agents from the U.S. Embassy in
Baghdad, rescued Jamie, and brought her back home, and she has
retrieved much medical treatment since.
Before Jamie went to Iraq to work for Kellogg Brown & Root,
she signed an 18-page employment contract. One of the 18 pages
included a binding arbitration clause which stated in part,
``You agree that you will be bound and accept as a condition of
your employment that any and all claims that you might have
against your employer, including any and all personal injury
claims arising in the workplace, must be submitted to binding
arbitration instead of the United States court system.''
It is argued that this clause requires a sexual assault
victim, such as Jamie Leigh Jones, to arbitrate with KBR crimes
committed against her by other KBR employees.
When she signed the contract, this 20-year-old young
person, Jamie, was interested in only two things, when would
she start working and how much would she be paid. Jamie did not
have an attorney present to advise her of the content and the
full meaning of this 18-page document, especially the binding
arbitration clause, nor should she need an attorney present. An
employment contract should be easily understood by any
layperson seeking a job.
Since Jamie returned to the United States, the perpetrators
of this crime still have not been prosecuted by our government,
so Jamie now hopes that her offenders can be held liable in
civil court.
Jamie's case is not the typical employment dispute. Her
civil case is based on underlying criminal accusations and
employer nonfeasance. It is one thing to arbitrate employment
disputes, but I want to be clear that a rape victim should not
be subject to an employment arbitration contract with her
employer.
As a former judge, I know the best way to solve these types
of accusations is in a courtroom with a jury. This one clause
should not prevent Jamie from obtaining justice that she needs
and deserves. Her case should be aired in a courtroom, not in
the back room of arbitration.
Thank you, Mr. Chairman.
I would like to introduce my constituent, Jamie Leigh
Jones.
Chairman Andrews. Well, thank you, colleague, Mr. Poe.
And, Ms. Jones, we want to welcome you to the committee. We
are very sorry for the ordeal that you have experienced----
Mr. Jones. Thank you.
Chairman Andrews [continuing]. And we are impressed by the
courage and integrity you have to come here today and tell us
about it. So welcome.
STATEMENT OF JAMIE LEE JONES, FORMER HALLIBURTON EMPLOYEE
Mr. Jones. Thank you.
Good afternoon, Mr. Chairman and members of the committee.
I want to thank you for having me here as well.
I went to the green zone in Baghdad, Iraq, on July 25,
2005, in support of Operation Iraqi Freedom.
Halliburton, my employer, prior to leaving the U.S.,
promised me that I would live in a trailer equipped to house
two women with a shared bathroom. Upon arrival at Camp Hope, I
was assigned to a predominantly all-male barrack. I complained
about my living conditions to Halliburton's management and
asked to be moved into my promised living quarters. These
repeated requests were denied.
On the fourth day in Iraq, I noticed the woman I was
replacing and several others were outside. They called me over
and invited me to come sit with them. When I did, I was offered
a drink. The men, identified only as Halliburton firefighters,
told me that one of them can make a good drink. So I accepted.
When he handed it to me, he told me, ``Do not worry. I
saved all my roofies for Dubai,'' or words very similar to
that. I thought that he was joking and felt safe with my
coworkers since we were all on the same team. I took two sips
from the drink.
When I awoke the next morning, I was extremely sore between
my legs and in my chest. I was groggy and confused. I went to
the restroom, and while there, I realized that I had bruises
between my legs and on my wrists. I was bleeding between my
legs.
When I returned to my room, a man was lying in the bottom
bunk of my bed. I asked him if he had sex with me and he said
that he did. I asked if it had been protected, and he said no.
I still felt the effects of the drug from the drink and was now
very upset at the confirmation of my rape. I dressed and left
for help.
I reported this incident to the operations coordinator who
took me to the KBR clinic. The clinic then called KBR security
who took me to the Army hospital. There, the Army doctor Jody
Schulz performed a rape kit.
Dr. Schulz confirmed that I had been penetrated both
vaginally and anally and that I was quite torn up down there.
She indicated that based upon the physical damage to my
genitalia that it was apparent that I had been raped. I watched
her give my rape kit to the KBR security personnel as I was,
again, turned over to these men.
KBR security took me to a container and imprisoned me. Two
armed guards were stationed outside my door. I was placed
inside and not allowed to leave. I asked for a phone to contact
my father, and that was denied. I was not provided food or
drink.
I begged one of the guards to let me use a phone until he
finally shared his cell phone with me so that I could call my
father back in Texas. My father then contacted my congressman,
Ted Poe. Congressman Poe took actions to get me out of Iraq.
That is when the State Department officials came to my rescue.
I was later interviewed by Halliburton supervisors, and it
was made clear to me that I had essentially two choices: stay
and get over it or go home with no guarantee of a job either in
Iraq or back in Houston. Because of the severity of my
injuries, I elected to go home, despite the obvious
termination.
Once I returned home, I sought medical attention for both
psychiatric and physical evaluations. I was diagnosed with
post-traumatic stress disorder. Due to the pain in my chest, I
went to several surgeons, and each discovered that my breasts
were disfigured and my pectoral muscles had been torn. This
injury required me to have reconstructive surgery.
I turned to the civil court for justice, in part because
the criminal courts have failed to even file an indictment at
this point.
Currently, there are approximately 180,000 military
contractors in Iraq. Approximately 20,000 of those contractors
are females. Fifty percent of all Americans on military bases
in Iraq are contractors. Contractors have been immune from both
Iraqi law and the Uniform Code of Military Justice. There has
not been a single complete prosecution of a criminal contractor
to date.
When I decided to pursue a civil suit, I was informed that
my bulky employment contract included an arbitration clause. I
learned that I had signed away my rights to a public trial and
justice. When there are no laws to protect Army contractors who
are working abroad, what is to stop these people from taking
the law into their own hands? The arena harbors a sense of
lawlessness.
Victims of crime perpetrated by employees of taxpayer-
funded government contractors in Iraq deserve the same standard
of treatment and protection governed by the same laws, whether
they are working in the U.S. or abroad. Army contracting
corporations harbor and ignore criminal activities in Iraq,
which, under the arbitration clause, protects them and does not
hold corporate accountability when a crime has been committed.
My case was not an isolated incident. Since no actions of
law could help other victims at this point, I started the Jamie
Leigh Foundation. To date, 38 women have come forward through
my foundation, and a number of them shared their tragedies in
confidence because they were silenced by provisions of their
arbitration agreements.
Unfortunately, arbitration is stacked in favor of business,
making it harder for individuals to prevail in a dispute, and
that is not just and fair to the patriotic, hardworking
employees. How can this country not protect us contractors who
have left our families to help our country in an effort to
build democracy overseas when we are victimized criminally?
Originally, this was a controlled way to expedite
resolution of disputes, but that is not the situation now, and
it is imperative the system be revised. My goal is to ensure
all American civilians who become victims of violent crimes
while abroad have the right to justice before a judge and jury.
[The statement of Ms. Jones follows:]
Prepared Statement of Jamie Leigh Jones, Former Halliburton/KBR
Employee
Good Afternoon, Mr. Chairman and members of the committee. First
and foremost, I would like to thank all the members of congress who
have united together in support of holding Army Contractors accountable
under enforceable law.
I went to Camp Hope, located in the ``Green Zone'', Baghdad, Iraq
on July 25, 2005, in support of Operation Iraqi Freedom. Halliburton/
KBR, my employer, prior to leaving the U.S., promised me that I would
live in a trailer equipped to house two women, with a shared bathroom.
Upon arrival at Camp Hope, I was assigned to a predominantly all-
male barrack. According to documents provided by Halliburton/KBR in
response to my EEOC complaint, approximately 25 women to more than 400
men were documented to be housed. I never saw a woman at the barrack. I
did find myself subject to repeated ``cat-calls'' and men who were
partially dressed in their underwear while I was walking to the
restroom, on a separate floor from me. The EEOC credited my testimony
with respect to this matter. That Determination Letter is attached to
this statement as an Exhibit.
I complained about my living conditions to Halliburton/KBR
management and asked to be moved into my promised living quarters.
These repeated requests were denied.
On the fourth day in Iraq, I received a call on my cell phone. The
reception in the barracks was bad, so I stepped outside to take the
call. Afterwards, I noticed that the woman I was replacing (her
contract had expired and she was returning back to U.S.) and several
others were outside. They called me over and invited me to come and sit
with them. When I did, I was offered a drink. The men (identified only
as Halliburton/KBR firefighters) told me that one of them could make a
really good drink and so I accepted. When he handed it to me, he told
me, ``Don't worry, I saved all my Rufies for Dubai,'' or words very
similar to that. I thought that he was joking, and felt safe with my
co-workers. I was naive in that I believed that we were all on the same
team. I took two sips or so from the drink.
When I awoke the next morning, I was extremely sore between my
legs, and in my chest. I was groggy and confused, but did not know why
at that time. I tried to go to the restroom, and while there I realized
that I had many bruises between my legs and on my wrists. I was
bleeding between my legs. At that point in time, I suspected I had been
raped or violated in some way. When I returned to my room, a man was
laying in the bottom bunk of my bed.
I asked him if he had sex with me, and he said that he did. I asked
if it had been protected, and he said ``no.'' I was still feeling the
effects of the drug from the drink and was now very upset at the
confirmation of my rape. I dressed and left for help.
I reported this incident to an Operations coordinator, who took me
to the KBR clinic. The clinic then called KBR security, who took me to
the Army CASH (Combat Army Support Hospital). There, the Army doctor,
Jodi Schultz, M.D, performed a rape kit.
Dr. Schultz confirmed that I had been penetrated both vaginally and
anally, and that I was ``quite torn up down there.'' She indicated that
based upon the physical damage to my genitalia, that it was apparent
that I had been raped. Dr. Schultz took photographs, and administered a
rape kit. I watched her give this rape kit to the KBR security
personnel as I was again turned over to these men.
These men then took me to a trailer and then locked me in. Two
armed guards (Ghurka's) were stationed outside my door. I was placed
inside, and not allowed to leave. I had my cell phone, but it would not
call outside of Baghdad. I asked for a phone to contact my father, and
this was denied. I was not provided food or drink (although there was a
sink, I did not trust it to drink from).
I begged and pleaded with one of the Ghurka guards until he was
finally willing to share his cell phone with me so that I could call my
father, back in Texas. I had begged him for that until he finally
agreed. My father then contacted my Congressman, Ted Poe. Congressman
Poe then took actions to get me out of the Iraq.
Once State Department officials (Matthew McCormick and Heidi
McMichael) saved me from the container I was placed in a ``safe''
trailer, and I requested that Heidi stay with me. She did.
I was later interviewed by Halliburton/KBR supervisors, and it was
made clear to me that I had essentially two choices: (1) ``stay and get
over it,'' or (2) go home with ``no guarantee of a job,'' either in
Iraq or back in Houston. Because of the severity of my injuries, I
elected to go home, despite the obvious threat of termination.
Once I returned home, I sought medical attention for both
psychiatric and physical evaluation. I was diagnosed with Post
Traumatic Stress Disorder (PTSD).
I also saw Sabrina Lahiri M.D., who found that my breasts were
asymmetrically disfigured, and that my pectoral muscles had been torn.
She wanted to do reconstructive surgery, and I sought ``second
opinions'' from several surgeons regarding that surgery. Even the
doctor, Halliburton forced me to see, reviewed my injuries and agreed
that they were due to forced trauma. He expressed anger and disgust.
Dr. Ciaravino then performed the first reconstructive surgery.
I still require additional medical treatment, including another
reconstructive surgery, and I continue to go to counseling 3 times per
week.
I turned to the civil court for justice, in part, because the
criminal courts have failed to even file an indictment at this point.
Currently there are approximately 180,000 military contractors in Iraq.
Approximately 20,000 of those contractors are females. 50% of Americans
on military bases in Iraq are contractors. Contractors have been immune
from both Iraqi law and the Uniformed Code of Military Justice
therefore there is no law governing them. There has not been a single
complete prosecution of a criminal contractor to date.
When I decided to pursue a civil suit, I was informed that within
my thirteen-page employment contract that had an additional five pages
attached, included an arbitration clause. At this point in my life I
had no idea what an arbitration was other than a tiny paragraph
included in the lengthy document that mandated that I could not get
justice from the civil court system. I learned that I had signed away
my right to a trial by jury. I thought this right was guaranteed by the
seventh amendment to the United States Constitution that specifically
states, ``In Suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be preserved''.
When there are no laws to protect army contractors who are working
abroad (from violent crimes), what is to stop people from taking the
law into their own hands? The arena harbors a sense of lawlessness. The
forced arbitration clause in army contractor's contracts, prove to
protect the criminals of violent crimes, rather than enforce they be
held accountable by a judge and jury.
Victims of crime perpetrated by employees of taxpayer-funded
government contracts in Iraq deserve the same standard of treatment and
protection governed by the same laws whether they are working in the
U.S. or abroad.
Army contracting corporations harbor and ignore criminal activities
in Iraq, which under the arbitration clause agreement, protects them
and does not hold corporate accountability when a crime has been
committed. This clause also paves the way for corporations to not be
held accountable under criminal law. My case wasn't an isolated
incident. Since no actions of law could help other victims at this
point, I started ``The Jamie Leigh Foundation''
www.jamiesfoundation.org. To date, thirty-eight women have come
foreword through my foundation. A number of them shared their tragedies
in confidence because they were silenced by provisions of their
arbitration agreements.
The arbitration proceeding is private and discrete and the outcome
of arbitration cannot be disclosed to the public. Unfortunately,
arbitration is stacked in favor of businesses, making it harder for
individuals to prevail in a dispute and that is not just, and unfair to
the patriotic hard-working employees. How can this Country not protect
us contractors, who have left our families to help our country in an
effort to build democracy overseas, when we are victimized criminally?
Originally, this was a controlled way to expedite resolution of
disputes but that's not the situation now and it is imperative the
system be revised. My goal is to ensure all American civilians who
become victim of violent crimes while abroad, have the right to justice
before a judge and jury.
______
Chairman Andrews. Well, Ms. Jones, thank you. Because this
hearing is being made available around the country and around
the world on the Internet, a lot of people are going to get to
hear the story you just told.
Mr. Jones. Right.
Chairman Andrews. I deeply regret that you had to tell it,
but I think we all respect and admire your courage and
integrity for telling it. So thank you very, very much.
Mr. Jones. Thank you.
Chairman Andrews. And we will get to questions at the end
of the panel.
Mr. Poe, I just wanted to invite you, if you would like to,
to come join the dais. You are welcome. But we do have another
witness that we are going to ask to assume the seat that you
are in. You are certainly welcome to stay and join us on the
dais, should you choose to do so.
Mr. Poe. Thank you, Mr. Chairman.
Chairman Andrews. Okay.
I would ask if Mr. de Bernardo could come forward and take
that seat.
And, Mr. de Bernardo, we are going to ask you to be next in
line to testify, if you would not mind.
Mr. de Bernardo. Thank you.
Chairman Andrews. Mark de Bernardo is a partner with the
law firm of Jackson Lewis, a labor and employment firm. In the
past, Mr. de Bernardo has served as special counsel for
domestic policy and director of labor law for the U.S. Chamber
of Commerce. He received his BA from Marquette University in
1976 and his JD from the Georgetown University Law Center in
1979.
Mr. de Bernardo, welcome. Your testimony has been included
as a part of the record, your written testimony, and we would
now give you 5 minutes to summarize it orally. Welcome.
STATEMENT OF MARK DE BERNARDO, PARTNER, JACKSON LEWIS, LLP
Mr. de Bernardo. Thank you, Chairman Andrews, Ranking
Minority Member Kline, members of the subcommittee.
I appreciate this opportunity to testify in strong support
of the use of ADR, Alternative Dispute Resolution, and the use
of mediation and arbitration generally in employment as
effective alternatives to litigation and in opposition to
Subtitle C, the arbitration prohibition section of the H.R.
5129.
I am executive director and president of the Council for
Employment Law Equity. I am also senior partner and chair of
the ADR practice group at Jackson Lewis. Jackson Lewis is an
employment law firm of more than 450 lawyers in 34 cities, and
I appreciate this opportunity to be before you today.
Jackson Lewis has long been a strong supporter of effective
and equitable ADR programs as an alternative to costly, time-
consuming, deleterious, relationship-destructive litigation. I
strongly believe that if you want justice in American today, go
to arbitration. Arbitrators are more predictably balanced,
unbiased, fair, and neutral than our politically appointed
judges and randomly-selected juries in our litigation system.
ADR employment programs are flourishing, and when
implemented appropriately, are decisively both pro-employee and
pro-employer. Like the AFL-CIO and organized labor in general,
my law firm has highly supported ADR and its impacts of less
litigation and less legal fees because it is what is best for
many of our clients and for their employees and because it is
the right thing to do.
The seminal question is: Should employers and employees be
able to engage in mediation and mandatory binding arbitration
of employment disputes as an alternative to litigation? The
seminal answer is: Absolutely. ADR employment programs, when
implemented appropriately, as mentioned, are decisively in
employees' best interests.
In my testimony, I discuss this. There are plenty of
studies, statistics. Overall, the research is very, very much
in favor of the use of ADR. The use of ADR in employment is
common. It is increasing. It is a means of avoiding litigation,
addressing more employee issues, resolving more amicably these
concerns.
Given the cost, delays, and divisiveness of employment
litigation in America today, a more sensible and conciliatory
approach is preferable for employees and for employers. The net
result of ADR is more employee complaints are received and
resolved--many more.
Secondly, employee complaints are resolved sooner with less
tension.
Third, there is less turnover. There is no question that
employment litigation is an employment relationship destroyer
whereas arbitration is an employment relationship preserver. So
there is less turnover, less likely and more favorable
preservation of employee relationships.
Fourth of the sixth, improve morale. Employers are better
employers because they identify more problems in the workplace
and address them at an earlier stage.
Number five, more effective communication and enhanced
constructive input by the employees into their companies.
And, finally, better workplaces. Employers are better
employers as a result of arbitration.
If there are reforms which are necessary and appropriate,
certainly they should be considered, and the CEOE and Jackson
Lewis would support and welcome such reforms. What is not
needed is a wholesale and retroactive dismantling of common,
effective, and widespread ADR and employment programs that work
and work well. The cost to employees and employers and the
interest of justice and sound employee relations would be
enormous and extremely destructive.
I would also like to point out that 70 percent of those
individuals who participated in mandatory binding arbitration
say that they support it and would do it again. Eighty-three
percent of the public in a public opinion poll, as discussed in
my testimony, favor binding arbitration, and 86.2 percent of
lawyers who have practiced in this area, both plaintiffs'
lawyers and defense lawyers also support it.
I dare say that most any legislator would accept approval
ratings of 70 percent, 83 percent, and 86.2 percent. There is
overwhelming support for ADR by those who are most involved and
those who practice in this area.
The supporters of ADR include the judiciary, the federal
government. It is very, very common in federal government.
Many, many agencies and branches of the armed services use
binding arbitration as part of their practice.
Practicing lawyers, as I mentioned, favor it, 86.2 percent.
Employees favor it. A public opinion poll found 83 percent of
employees favor arbitration. Parties to arbitration favor it. A
survey of more than 600 adults who participated in binding
arbitration, 70 percent of----
Chairman Andrews. Excuse me, Mr. de Bernardo. If you could
just wrap up. The red light is on.
Mr. de Bernardo. Okay. So, with that, I cannot help but
take one quote from my conclusion, which is, ``When will
mankind be convinced and agree to settle the difficulties by
arbitration?'' That quote was issued by Ben Franklin more than
200 years ago. I agree with him.
It is a very big part of American society right now. There
would be very draconian consequences if Subtitle C were
enacted.
Thank you.
[The statement of Mr. de Bernardo may be accessed at the
committee website's following address:]
http://edlabor.house.gov/testimony/2008-02-12-MarkdeBernardo.pdf
______
Chairman Andrews. Thank you, Mr. de Bernardo. We appreciate
you being here.
Mr. Foreman?
STATEMENT OF MICHAEL FOREMAN, CO-CHAIR OF EMPLOYMENT
DISCRIMINATION TASK FORCE, LEADERSHIP COUNCIL ON CIVIL RIGHTS
Mr. Foreman. Chairman Andrews, Ranking Member Kline,
members of the committee, thank you for taking up this
important issue.
My name, again, is Michael Foreman. I am here testifying on
behalf of the Leadership Conference on Civil Rights, which is a
coalition of over 200 national organizations that is dedicated
to providing equal opportunity to all members of our society.
Given the fact that this committee is taking up this issue,
it is obvious that you understand the importance of this issue,
but I do not want to put too small a point on that.
In 1979, about 1 percent of employers in this country had
pre-dispute--and I do want to focus on pre-dispute--binding
arbitration clauses for employment. In 2007, that figure had
moved to 25 percent. If that trend continues, which my
colleague here indicated it will, in the very foreseeable
future, we are going to see a legal system where civil right
employment disputes are not going to be decided by judges who
are publicly appointed or by juries of our peers, which is the
bedrock of our society, but they are going to be decided by a
small group of arbitrators, largely paid by employers, in
confidential settlements with no public accountability.
The current issue before this committee--and I want to
stress this--is not whether there should be binding arbitration
in employment disputes. We support binding arbitration of
employment disputes, when it is voluntary, when it is knowing,
and when there is, in fact, a dispute to be arbitrated.
What we do not support is pre-dispute binding arbitration
that are hidden in applications, that are hidden in employee
handbooks, or forced on to employees, and that is the reason we
support the provision in H.R. 5129.
The sad reality for many of the millions of clients that
our organizations represent is there really is no choice. There
is no choice in what they can do. In making good social policy,
we cannot divorce ourselves from reality.
Do any of us really, really believe that most blue-collar
workers, if they walk in and refuse to sign the application
because it has a binding arbitration clause, that they will get
that job? Or in Ms. Jones's case, do any of us really believe
if she had told Halliburton, ``I am sorry. I cannot sign that
agreement,'' that she would have gotten the job?
Our workers' choices are between putting food on the table
or possibly getting health insurance or possibly being able to
pay their mortgage. That is not a real choice, and that is all
this bill is attempting to do in this provision. The provision
is to provide that choice.
In practice, mandatory arbitration agreements are not
supposed to change substantive rights. They are only supposed
to change the forum in which they are doing it. But that is
also sadly not true. In the detailed statement, we have
addressed that. It is not insignificant to take away the right
to be heard in court or the right to be heard by a jury.
In some of the statistics we have provided that are
provided by the American Arbitration Association, for
arbitration dealing with Pfizer for a specific time period, the
decision rate was a 97 percent win rate for the employer. For
Halliburton, it was an 82 percent. They prefer arbitration
because they win in arbitration most of the time.
It is one thing to permit employees to willingly give that
up. It is another thing to take that choice away before there
is even a dispute to be taken away.
I do not need to spend a lot of time talking about this in
the abstract. You just heard testimony from Ms. Jones about
probably one of the ugliest employment situations that you can
imagine, but let's think about the consequences when she
returned from helping serve our country, and that ugliness is
revisited by the fact that she cannot have the right that this
Congress has provided to her exercised in a court of law or
before a jury. What type of ugliness is that? And that is
something that we want to correct.
The Supreme Court has virtually invited Congress
repeatedly, through the Waffle House, through the Gilmore
decision, and others, to specifically tell them, ``If you do
not want these subject to pre-dispute arbitration, then tell us
so.''
In fact, what we are asking you to do is accept that
invitation. We are not asking to ban binding arbitration across
the board, but what we are asking you to do is ban it in a pre-
dispute and then only if it is willing.
And I will be available to answer questions and provide any
other information.
Thank you.
[The statement of Mr. Foreman follows:]
Prepared Statement of Michael Foreman, on Behalf of the Leadership
Conference on Civil Rights
Chairman Andrews, Ranking Member Kline and members of the
Subcommittee. Thank you for convening this hearing, which in part will
address the issue of mandatory arbitration of employment disputes and,
ultimately, how much we as a society value the civil rights of our
workers. Pre-dispute mandatory arbitration is an issue that that is not
only timely, but critical as we, as a nation, continue to struggle to
ensure equal employment opportunities for all. My name is Michael
Foreman and I am testifying today on behalf of the Leadership
Conference on Civil Rights (LCCR). The Leadership Conference on Civil
Rights (``LCCR'') is a coalition of more than 200 national
organizations committed to the protection of civil and human rights in
the United States.\1\ Founded in 1950, LCCR is the nation's oldest,
largest, and most diverse civil and human rights coalition. LCCR's
members are dedicated to preserving the interest of individuals in
raising issues of unlawful discrimination and the interest of society
in having those issues brought to light. Collectively, LCCR's members
represent millions of our nation's most vulnerable workers.
In addition to serving as the Co-Chair of the Leadership
Conference's Employment Task Force, I am also the Director of the
Employment Discrimination Project at the Lawyers' Committee for Civil
Rights Under Law, which is one of LCCR's member organizations. The
Lawyers' Committee for Civil Rights Under Law (the ``Lawyers'
Committee'') is a nonprofit civil rights organization that was formed
in 1963 at the request of President Kennedy in order to involve private
attorneys throughout the country in the national effort to insure the
civil rights of all Americans. Its Board of Trustees includes several
past Presidents of the American Bar Association, past Attorneys General
of the United States, law school deans and professors and many of the
nation's leading lawyers. The Lawyers' Committee seeks to ensure that
the goal of civil rights legislation, to eradicate discrimination, is
fully realized.
During the course of my career, I have represented employees and
employers, as well as federal, state, and local governments. I have
handled employment matters through all phases of their processing from
the administrative filing, at trial and through appeal.\2\ This hands-
on experience informs my analysis of the use of mandatory arbitration
for employment disputes.
My testimony will address three topics: (1) the involuntary nature
of many pre-dispute arbitration agreements (2) the ways in which
mandatory arbitration clauses subvert employees' substantive rights,
and (3) why it is necessary to curtail the use of pre-dispute mandatory
arbitration.
It is important to recognize at the outset that pre-dispute
mandatory arbitration is not just an employment issue or a civil rights
issue; it is an issue that cuts to the core of this country's ideals of
equality and due process.
For over half of a century, our society and this Congress has
struggled with issues concerning equal employment opportunity and
attacked the problem of employment discrimination through significant
legislation including Title VII, the Civil Rights Act of 1991, the
Americans with Disabilities Act, the Age Discrimination in Employment
Act, and the Equal Pay Act, to name a few. In keeping with our national
commitment to equality, Congress created a framework for enforcing
these rights though individual lawsuits, litigation by the Attorney
General, and the efforts of federal agencies, like the Equal Employment
Opportunity Commission, tasked with enforcing laws against employment
discrimination. In doing so, Congress established a plan for combating
discrimination through an open, fair process governed by the rule of
law and administered by impartial judges and juries that allowed for
public accountability. In fact, as recently as 1991, Congress acted to
protect employees by codifying their right to a jury trial in Title VII
cases. It is hard to envision a justice system that allows employers to
strip employees of the very rights Congress has worked tirelessly to
protect, especially through pre-dispute mandatory arbitration clauses
hidden in employment applications or employee handbooks.
While one can debate whether permitting binding arbitration for any
civil rights claim is good public policy, we are not here to resolve
that issue. The current question before this subcommittee is not
whether there can be binding arbitration but when binding arbitration
is appropriate. We support alternative dispute resolution agreements,
including binding arbitration agreements, that are adopted knowingly
and voluntarily after a dispute has emerged. What we oppose, and what
Section 421-424 of H.R. 5129 (Civil Rights Act of 2008) prohibits, are
binding mandatory arbitration clauses that employees are forced to
submit to long before any dispute has arisen.
Many Employees Have No Choice In Whether To Submit Their Civil Rights
Claims To Pre-Dispute Mandatory Arbitration
Seeing a way to minimize the costs associated with violating civil
rights laws, employers are increasingly turning to pre-dispute
mandatory arbitration. In 1979, only 1 percent of employers used
arbitration for employment disputes.\3\ According to most recent
estimates, around 15% to 25% of employers nationally have adopted
mandatory employment arbitration procedures.\4\ The stark reality is
that all too often, the employees have no choice but to surrender their
rights and accept mandatory arbitration. Many employees do not have the
luxury of choosing when, and under what conditions to sign arbitration
agreements, because employers often make such agreements a job
requirement. Employees who refuse to sign a mandatory arbitration
agreement could lose their current jobs or be denied a new position.
In formulating good public policy we must not divorce ourselves
from the reality of life for many Americans; if a blue-collar worker
refuses to sign a job application containing a pre-dispute mandatory
arbitration clause, or a separate arbitration agreement included in a
stack of documents piled before them on their first day of the job, do
you honestly think the employee would get the job? \5\ We all know what
would happen, the employer would just go on to the next applicant who
signed the arbitration agreement, regardless of whether that worker
knew he or she was agreeing to submit his or her civil rights claims to
mandatory arbitration or what that really meant.
For many employees, the only real choices they face are ones like:
Passing up a paycheck that would help put food on the
table or signing a job application stating that one's signature
constitutes an agreement to binding arbitration of any dispute;
Risking foreclosure from unpaid mortgage bills or agreeing
to submit their supposedly federally guaranteed civil rights to
mandatory arbitration; or
Giving up the chance to finally get health care benefits
or signing away their right to a jury trial
These employees do not really have a choice at all.
Employees also have no way of knowing when a provision of an
arbitration agreement is actually prohibited by law. Most often,
employees will simply submit to the terms of the contract without
realizing that they could challenge the legality of certain unfair or
impermissible conditions.
Having had no choice but to accept mandatory arbitration, many
employees are stuck trying to enforce their federally protected civil
rights in a system selected and dominated by their employer. These are
the workers the Leadership Conference and the Lawyers' Committee
represent. It is their ability to choose that Section 421-424 of H.R.
5129 is designed to protect.
In Practice, Pre-Dispute Mandatory Arbitration Agreements Supplant
Employees' Substantive Rights
While the Supreme Court has noted that mandatory arbitration
agreements should only alter the forum in which employment disputes are
resolved, not the substance of employees' civil rights, this
distinction is not borne out in practice. In reality, by stripping away
procedural rights, the underlying substantive right is undermined or
even eviscerated. Mandatory arbitration agreements often lack the
safeguards, accountability, and impartiality of the system Congress
created, allowing employers to bypass some of the most important
protections built into anti-discrimination legislation such as the
Civil Rights Act of 1964 and the Civil Rights Act of 1991.
One of the most glaring ways in which mandatory arbitration
agreements strip employees of their substantive rights is by denying
them their day in court before an impartial judge and a jury of their
peers. Mandatory arbitration forces employees to forego the traditional
court system and present their claims before arbitrators who are not
required to know or follow established civil rights and employment law.
Private arbitrators, who are selected by the employer, also depend on
the employer for repeat business, and thus have an incentive to rule in
favor of the employer. In fact, despite the clear conflict of interest
that arises, employers sometimes finance the arbitration. In such
cases, the arbitrator may feel obliged to rule in favor of the party
that is paying the bill.
Tellingly, by way of examples, between January 1, 2003 and March
31, 2007, AAA's public records show that AAA held 62 arbitrations for
Pfizer, of which 29 reached a decision. Of these 29 cases, the
arbitrator found for the employer 28 times--a decision rate of 97
percent for the employer. Similarly, Halliburton's win rate was 32 out
of 39 cases that went to decision--an 82 percent win rate for the
employer.\6\
Employees' rights are diminished by mandatory arbitration in many
ways, including but not limited to:
Limitation or prohibition of pre-trial discovery, thus
impeding employees' ability to use depositions and discovery requests
to obtain information that would support their claims. As the employee
has the burden of proof, this limitation is particularly troublesome.
This lack of discovery benefits the party with greater access to
evidence and witnesses. Since employers generally have control over
relevant documents and the employees involved, arbitration's limited
discovery provides a distinct advantage to employers.
No right to trial before a jury of one's peers, which is
protected by legislation such as the Civil Rights Act of 1991 and the
Age Discrimination in Employment Act.
Stringent filing requirements, giving parties less time to
prepare and reducing the statutory limitations period that would
otherwise be available for filing a lawsuit.
Limited right to appeal arbitration decisions. Courts are
only permitted to overturn such decisions under extreme circumstances.
Significantly, the existence of clear errors of law or fact in an
arbitrator's decision does not provide grounds for appeal.
Limited range of remedies available. Arbitrators cannot
order injunctive relief, and very rarely award compensatory or punitive
damages. Even when awarding damages, arbitrators often award only back
pay.
Uncertain ability to bring class actions suits, even when
this particular type of action would be most efficient in addressing
the discrimination.
Arbitration is also often private and confidential, so employers
are spared from the public awareness that otherwise would provide a
strong incentive to proactively address discrimination and harassment.
Pre-dispute mandatory arbitration is simply not an effective way to
enforce our civil rights laws, hold violators accountable, and prevent
discrimination from occurring again in the future. To the contrary,
allowing arbitrators to bypass important civil rights legislation in
making their decisions weakens our system's ability to protect
employees from discrimination in the workplace. It is one thing to
permit employees to willingly and knowingly agree to resolve an
existing dispute through arbitration. It is quite another to allow
vulnerable employees to be forced by their circumstances to rely on
mandatory arbitration to enforce their civil rights and maintain our
nation's commitment to equality.
Why the Arbitration Provision in H.R. 5129 is Necessary
Primarily because of a competing public policy favoring arbitration
of disputes evident in the Federal Arbitration Act, the Supreme Court
in its recent analysis of pre-dispute mandatory arbitration,\7\ has
been unwilling to conclude that mandatory arbitration frustrates the
purpose of civil rights laws ensuring equal employment opportunity,
absent an explicit statement from Congress on the issue. Further, as
previously mentioned, the Court has repeatedly noted that binding
arbitration should not impact the substantive right, just the forum.
These rulings have exacerbated rather than resolved the problems
raised by mandatory arbitration agreements. Many lower courts give
deference to arbitration agreements in virtually every type of
employment case and ignore the fact that mandatory arbitration has a
substantial impact beyond merely changing the forum.
Indeed, some courts have enforced mandatory arbitration agreements
even when employees have expressly refused to sign them. Ms. Fonza
Luke, of Alabama, worked loyally as a nurse for a hospital for almost
30 years. Despite her decades of committed service, she was asked to
sign a document agreeing to use of mandatory arbitration program for
any dispute arising in her workplace. Although she explicitly refused
to sign the agreement, a court forced her arbitrate her discrimination
claims.\8\
Judicial decisions upholding mandatory arbitration in employment
cases highlight the importance of Congress resolving the issue through
legislation like Section 421-424 of H.R. 5129. In light of Congress's
approval of arbitration generally, as reflected in the Federal
Arbitration Act, courts are understandably uncomfortable concluding
that arbitration of employment discrimination claims is unlawful
without more evidence of congressional intent.\9\ Speculation regarding
Congress's intent regarding mandatory arbitration of employment claims
has created substantial confusion in the lower courts. Some courts have
enforced mandatory arbitration clauses and upheld them as binding.\10\
Others have struck them down, concluding that such clauses
significantly alter employees' substantive rights.\11\
Conclusion: Congress Must Take Positive Action
Through its decisions, the Supreme Court has virtually invited
Congress to specifically express its intent with regard to the
permissibility of pre-dispute mandatory arbitration of employment
claims.\12\ Section 421-424 of H.R. 5129 answers the Court's request by
reinforcing the protections Congress intended our nation's workers to
enjoy.
The Leadership Conference urges Congress support the H.R. 5129's
arbitration provision. With nearly a quarter of America's non-union
workforce currently being subjected to the separate and extremely
unequal system of mandatory arbitration, Congress should take positive
steps to ensure that our civil rights and employment laws protect all
American workers.
Again, thank you Chairman Andrews, Ranking Member Kline, and
members of the Subcommittee for the opportunity to speak with you
today.
endnotes
\1\ A listing of the organizations that comprise the Leadership
Conference is attached as Exhibit 1.
\2\ A copy of my resume is attached as Exhibit 2.
\3\ See the attached timeline documenting the increase in the use
of mandatory arbitration prepared by the National Employment Lawyers
Association, attached as Exhibit 3.
\4\ See Alexander Colvin Empirical Research on Employment
Arbitration: Clarity Amidst the Sound and Fury? 11 EMP. RTS. & EMP.
POL'Y J. 405, 411 (2007) Describing it as a conservative estimate,
Professor Colvin extrapolates the 25% figure from his 2003 finding that
23% of the non-union telecommunications workforce was covered by
mandatory arbitration programs.
\5\ This assumes that the applicant is actually aware of the pre-
dispute mandatory arbitration requirement. Even if some employees would
object to unfair and burdensome pre-dispute mandatory arbitration
clauses, such clauses are often deeply buried in the small print of
lengthy employment contracts, and can be so unclear that most employees
do not truly understand the consequences of signing the agreement.
\6\ See Hearing on H.R.. 3010, The Arbitration Fairness Act of
2007Before the Subcomm. on Commercial and Administrative Law of the H.
Comm. on the Judiciary, 110th Cong. (2007) (Testimony of Ms. Cathy
Ventrell-Monsees, Esq.).
\7\ See EEOC v. Waffle House, Inc., 534 U.S. 279 (2002) (concluding
that a mandatory arbitration agreement between an employee and an
employer does not bar the EEOC from pursuing victim-specific relief in
an enforcement action under the Americans with Disabilities Act);
Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001) (holding that
the Federal Arbitration Act exempts only transportation workers, not
all employment contracts, and therefore the binding arbitration
provision contained an a retail employee's job application was
enforceable); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20
(1991) (enforcing a pre-dispute, binding, mandatory arbitration
agreement in an age discrimination case, even though the Age
Discrimination in Employment Act explicitly codifies the right to a
trial before a judge and jury).
\8\ See S. 1782, The Arbitration Fairness Act of 2007: Hearing on
S. 1742 Before the S. Comm. on the Judiciary, 110th Cong. (2007)
(Testimony of Ms. Fonza Luke).
\9\ See Circuit City, 532 U.S. at 119 (Concluding that the FAA's
text cannot be interpreted to exempt all employment contracts and Court
cannot simply create such an exemption); Barker v. Halliburton Co.,
2008 U.S. Dist. LEXIS 6741 at *21 (S.D. Tex. 2008) (``Therefore, absent
some showing that Congress expressly exempted one of Barker's types of
claims from arbitration, the presumption under the Federal Arbitration
Act is that arbitration must be compelled.'').
\10\ See, e.g., EEOC v. Woodmen of the World Life Ins. Society, 479
F.3d 561 (8th Cir. 2007); Garrett v. Circuit City Stores, Inc., 449
F.3d 672 (5th Cir. 2006); Caley v. Gulf Stream Aerospace Corp., 428
F.3d 1359 (11th Cir. 2005). In fact, the only circuit that has
addressed the issue of mandatory arbitration of USERRA claims has
enforced the arbitration agreement despite explicit language in USERRA
indicating that it supersedes any contract or agreement that reduces,
limits, or eliminates any rights under the Act or creates additional
prerequisites to exercising USERRA rights. See Garrett, 449 F.3d at
677-678; 38 U.S.C. Sec. 4302(b).
\11\ See, e.g., Davis v. O'Melveny & Myers, 485 F.3d 1066 (9th Cir.
2007) (holding that a mandatory arbitration agreement was
unconscionable under California law in part because it contained
provisions that required employees to ``waive potential recovery for
substantive statutory rights in an arbitral forum''); Kristian v.
Comcast Corp., 446 F.3d 25 (1st Cir. 2006) (striking down several
provisions of a pre-dispute mandatory arbitration clause as invalid
because threatened to alter substantive rights); McMullen v. Meijer
Inc., 355 F.3d 485 (6th Cir. 2004) (striking down a provision in a
mandatory arbitration agreement which granted employer unilateral
control over the pool of potential arbitrators, because such a
provision inherently lacked neutrality and prevented the employee from
effectively vindicating her statutory rights).
\12\ See Circuit City Stores, Inc. v. Saint Clair Adams, 532 U.S.
105, 119 (2001) (explaining that the Court has no basis to adopt ``by
judicial decision rather than amendatory legislation, an expansive
construction of the FAA's exclusion provision'' that would exempt all
employment contracts) (internal citations omitted) (emphasis added);
Gilmer, 500 U.S. at 26 (``Although all statutory claims may not be
appropriate for arbitration, having made the bargain to arbitrate, the
party should be held to it unless Congress itself has evinced an
intention to preclude a waiver of judicial remedies for the statutory
rights at issue.'').
______
Chairman Andrews. Mr. Foreman, thank you for your
testimony.
We will now move to the witnesses who will discuss the
issue of the employment rights of first responders who serve
our country in a voluntary, but professional basis.
Chief Alchevsky, welcome to the committee.
STATEMENT OF JOHN ALCHEVSKY, VOLUNTEER FIREFIGHTER
Mr. Alchevsky. Thank you, Chairman Andrews, Ranking Member
Kline, distinguished members of the subcommittee.
I would like to thank you for giving me the opportunity to
be here today to speak with you about the need for employment
protection for volunteer firefighters and EMS personnel.
My name is John Alchevsky. I am the chief of Cassville
Volunteer Fire Company in Jackson Township, New Jersey, where I
have served for almost 30 years.
In 2005, immediately following Hurricane Katrina, my fire
company was contacted by FEMA and asked to contribute two teams
of four to be deployed to Louisiana to perform community
relations duties.
I am employed as a captain with the New Jersey Department
of Corrections. When I approached my employer about potentially
deploying, I was informed that I did not have enough personal
leave time accrued to go.
My job has prevented me from responding to major
emergencies within the State of New Jersey on a number of
occasions as well. For instance, last summer, my company was
dispatched to Stafford Township, in Southern Ocean County,
where a wild land fire was burning for structure protection
duty.
While I was eventually able to deploy, along with the rest
of my company, having to go through the normal process of
requesting and receiving time off from work delayed my response
by approximately 24 hours. These are just two examples of
instances in which my job has prevented me from responding to
an emergency.
Over the course of 30 years of volunteer service, I have
personally experienced and witnessed numerous situations in
which volunteer firefighters have either been prevented from or
delayed in responding to an emergency or have had to leave the
scene of an emergency prematurely for fear of disciplinary
action by their employer.
In New Jersey, municipal employees that are members of a
volunteer fire company or first aid squad are allowed time off
with pay to respond to local emergencies. Additionally, civil
servants employed by the state are authorized to respond to
state or federally declared disasters to serve as certified Red
Cross volunteers.
This protection does not extend to volunteer firefighters,
EMS, or emergency management personnel. Unfortunately, there is
no job protection of any kind for volunteers who are employed
in the private sector.
From my perspective, the issue of job protection is a
fundamental one for the long-term health of the volunteer fire
service. Recruitment and retention of volunteer personal is
becoming increasingly difficult. Many people do not seem to
have enough free time to volunteer anymore, particularly as
training requirements increase.
In the past when people lived and worked in the same town,
volunteering was easier and employers were also community
members. In many parts of New Jersey, though, people are moving
from Philadelphia and New York into formerly rural areas and
commuting back into the city for work. As the distance between
home and employment increases and grows, people are finding it
more difficult to balance their responsibilities as employees
and volunteer emergency responders.
The passage of legislation protecting the employment status
of volunteer emergency responders would help to counteract this
trend.
I wish to thank you, again, for the opportunity to testify
before you here today. I look forward to answering any
questions that you might have.
[The statement of Mr. Alchevsky follows:]
Prepared Statement of John I. Alchevsky, National Volunteer Fire
Council
Chairman Andrews, Ranking Member Kline and distinguished members of
the subcommittee, I'd like to thank you for giving me the opportunity
to be here today to speak with you about the need for employment
protection for volunteer firefighters and EMS personnel. My name is
John Alchevsky and I am the Chief of Cassville Volunteer Fire Company
#1 in Jackson Township, New Jersey, where I have served for almost 30
years.
In 2005, immediately following Hurricane Katrina, my Fire Company
was contacted by FEMA and asked to contribute two teams of four to be
deployed to Louisiana to perform community relations duties. I am
employed as a Captain with the New Jersey Department of Corrections.
When I approached my employer about potentially deploying, I was
informed that I did not have enough personal leave time accrued to go.
My job has prevented me from responding to major emergencies within
the state of New Jersey on a number of occasions. For instance, last
summer my company was dispatched to Stafford Township in Southern Ocean
County, where a wildland fire was burning, for structure protection
duty. While I was eventually able to deploy along with the rest of my
company, having to go through the formal process of requesting and
receiving time off from work delayed my response by 24 hours.
These are just two examples of instances in which my job has
prevented me from responding to an emergency. Over the course of 30
years of volunteer service, I have personally experienced and witnessed
situations in which volunteer firefighters have either been prevented
from or delayed in responding to an emergency or had to leave the scene
of an emergency prematurely for fear of disciplinary action by their
employer.
In New Jersey, municipal employees that are members of a volunteer
fire company or first aid squad are allowed time off with pay to
respond to local emergencies. Additionally, civil servants employed by
the state are authorized to respond to state- or federally-declared
disasters to serve as certified Red Cross volunteers. This protection
does not extend to volunteer firefighters, EMS or emergency management
personnel. Unfortunately, there is no job protection of any kind for
volunteers who are employed in the private sector.
From my perspective, the issue of job protection is a fundamental
one for the long-term health of the volunteer fire service. Recruitment
and retention of volunteer personnel is becoming increasingly
difficult. Many people don't seem to have enough free time to volunteer
anymore, particularly as training requirements increase. In the past,
when people lived and worked in the same town, volunteering was easier
and employers were also community members. In many parts of New Jersey,
people are moving from Philadelphia and New York into formerly rural
areas and commuting back into the city for work. As the distance
between home and employment grows, people are finding it more difficult
to balance their responsibilities as employees and volunteer emergency
responders. Passage of legislation protecting the employment status of
volunteer emergency responders would help to counteract this trend.
Thank you again for the opportunity to testify here today. I look
forward to answering any questions that you might have.
______
Chairman Andrews. Chief, thank you. We are very glad that
you are with us. We appreciate it.
Mr. Robinson, welcome to the subcommittee.
STATEMENT OF ALFRED ROBINSON, JR., SHAREHOLDER, OGLETREE
DEAKINS
Mr. Robinson. Thank you, Mr. Chairman.
Chairman Andrews, Ranking Member Kline, and distinguished
members of the subcommittee, thank you for this opportunity.
Again, my name is Al Robinson. I appear today on behalf of
the Society for Human Resource Management, the world's largest
professional association devoted to human resource management.
Mr. Chairman, over the last several years, the nation's
volunteer firefighters and emergency medical service personnel
have been asked to respond to everything from natural
disasters, such as the recent tornadoes in the Southeast and
the fires in California last summer, to the terrorist attacks
of September 11, 2001.
The Society of Human Resource Management joins all
Americans in expressing our indebtedness to the service of
volunteer firefighters and medical responders.
U.S. employers provide a host of leave benefits, both
voluntary and mandatory, to help employees achieve an effective
work-life balance and meet their own professional and personal
needs. I want to highlight for the subcommittee a few of those
federal laws.
The most prominent federal law is the Family and Medical
Leave Act. Another statute, the Americans with Disabilities
Act, also provides leave benefits. Through providing reasonable
accommodations to employees, employers frequently give time off
from work to these employees. Also, EEOC guidance says that
employers can be required to give an indefinite leave of
absence to employees in certain circumstances.
The newest federal leave mandate is a job-protected leave
benefit for military family members. It requires employers to
provide both active duty leave and 12 weeks of FMLA leave for
an employee whose spouse, son, daughter, or parent is called to
active duty and caregiver leave for a total of 26 weeks during
a 12-month period to give care for recovering soldiers.
I underscore these laws because employers face potential
litigation and damages when they make a wrong decision.
As for the proposed legislation, it is a laudable goal to
give a leave entitlement for volunteer firefighters and
emergency medical personnel. However, this proposal has many
provisions that could undermine that goal, and we believe the
subcommittee should clarify and address them.
Despite the best intentions of the drafters of this
legislation, there are significant omissions in this
legislative proposal.
First, the proposal charges no governmental department or
entity with the responsibility to define by regulation any
provision of the proposal. Regulatory guidance would assist
employees and employers to know and understand their rights and
obligations.
The second omission is the proposal provides no
administrative enforcement mechanisms. Instead, the only way to
resolve ambiguities or unaddressed questions under this leave
program is through unnecessary, costly ligation, which we
submit will not nurture the spirit of volunteerism.
In addition, there is a need for clarification. First, the
proposal makes no differentiation in the characteristics of the
employer to which it applies. The proposal would apparently
apply to any and all employers, large or small.
Second, it is unclear if the legislation would cover full-
or part-time employees.
Third, the proposal fails to take into consideration its
impact upon any employer if an employee is a key employee.
Fourth, there is no provision for undue hardship limitation
should a single employer face the burden of having multiple
employees who are absent due to its protections.
Fifth, the proposal does not address whether reasonable
notice means that an employee must comply with the employer's
notification procedures. As you are aware, this is an ongoing
issue for employers and employees under the FMLA.
Sixth, the inclusion of state disasters and emergencies
under the proposal compounds an employee's and employer's
ability to determine what disasters or emergencies are covered.
Seventh, I would urge the subcommittee to address language
to allow an employer to reduce an employee's pay when they are
absent for working for volunteer services. At a minimum,
Congress should clarify that an employer could dock a Section
13(a)1 exempt employee under the Fair Labor Standards Act for a
partial day absence and that a full day absence for
volunteering would constitute a personal day.
Eighth, the verification process needs clarification. While
it permits an employer to require an employee to provide it, no
timeframes as to compliance or consequences for failure are
provided.
Ninth, the proposal provides 14 days of leave, but is
unclear whether tardiness or absence would be protected after
being deployed for a week.
There are other ambiguous provisions and other questions.
I would be glad to any questions for you, Mr. Chairman and
the subcommittee, and we appreciate this opportunity to share
our concerns.
[The statement of Mr. Robinson follows:]
------
Chairman Andrews. Mr. Robinson, thank you for your very
constructive testimony. We appreciate it very much.
Chief, welcome to the subcommittee. We look forward to your
testimony.
STATEMENT OF PHILIP STITTLEBURG, CHAIRMAN, NATIONAL VOLUNTEER
FIRE COUNCIL
Mr. Stittleburg. Thank you, Mr. Chairman.
First of all, let me begin by thanking you personally for
the longtime support that you have provided to the fire and
emergency services of our country. Your support has long been
noted, it is much appreciated, and I want to take this
opportunity to thank you personally for it.
Second, I want to thank you for allowing me to testify
today. My name is Chief Phil Stittleburg. I am chief of the
LaFarge Fire Department.
I am also chairman of the National Volunteer Fire Council.
The NVFC is nonprofit organization. We represent more than 1
million volunteer firefighters and emergency medical personnel
throughout the country.
We are found most predominantly in smaller communities.
Volunteer fire and EMS personnel serve more than 20,000
communities throughout the United States, and we save our
fellow taxpayers about $37 billion a year by virtue of our
donated services.
Without the services that these volunteers provide, many
communities simply would not have these services because they
are not able to afford to purchase them, and this is especially
true in rural areas.
First of all, I would like to emphasize that volunteer
firefighters and EMS personnel are true professionals. We are
trained the same, we respond the same, we give the same
service, we accept the same risks, and we do the same job as
our paid counterparts. The only difference is that we do it for
little or no money, and what that means then is consequently we
must have a day job to provide our livelihood. In my instance,
I am an assistant district attorney employed by the State of
Wisconsin.
The vast majority of incidents that occur in our country
every year are handled locally, of course, and many of those
are handled by the volunteers that I have just described. In
those rare instances where there is a larger incident, an
incident too big for the local resources to deal with, why,
there is a process, of course, to call in state resources and,
of course, there is a process for states to call in other
states through the Emergency Management Assistance Compact,
EMAC, as many of you are aware.
When we talk about large incidents, I think the images that
spring to mind primarily are, say, the terrorist attacks of 9/
11 or Hurricane Katrina, but in actual point of fact, there are
on average in a given year probably 50 or more incidents that
are declared as federal emergencies, and when the nonlocal
firefighters and EMS personnel get deployed to these, they are
expected to serve for an extended period of time. With a
federally declared emergency, they would be expected to respond
for up to 14 days.
For many volunteers, absence from their job is a major
impediment to being available to respond. Currently, volunteer
firefighters and EMS personnel do not have federal protection
for responding and, consequently, they are exposed to
suspensions, demotions, firing, other sorts of workplace
retaliation for missing work because of responding to
incidents.
Now some states, of course, have responded to this concern
by passing legislation on a state-by-state basis. Most have
not.
But what is, I think, even more significant in this area is
the chilling effect that the potential for job retaliation has.
In other words, volunteers stand the possibility of being told
that they are not going to be given the time off or that if
they take the time off that they will be required to take their
own personal vacation time to do it and, consequently, they
simply are not going to respond. So we have very much of a
chilling effect on the ability to provide the response that is
needed.
My view is that volunteers deserve protection. We call upon
them to donate their time. We call upon them to donate their
talent. We should not expect them to also have to put at risk
their livelihood. We ask that the federal government provide
for up to 14 days of protection per year.
This is not intended primarily to protect volunteers. What
it is intended to do is to enable volunteers to do the job that
they are trained to do, that is to help and protect the public.
Doing this would expand by thousands the number of responders
that would be available throughout the country that pre-
emergency planners can count on and they know are there and
available.
Now I understand concerns briefly raised, although I
thought that one of the remarks was particularly interesting,
that employers are trying to enable employees to reach a work-
life balance. I would suggest to you here this is a work-work
balance. The volunteers work in both careers.
Thank you very much, Mr. Chairman.
[The statement of Mr. Stittleburg follows:]
Prepared Statement of Philip C. Stittleburg, National Volunteer Fire
Council
Chairman Andrews, Ranking Member Kline and distinguished members of
the subcommittee, I'd like to thank you for giving me the opportunity
to be here today to speak with you about the need for employment
protection for volunteer firefighters and EMS personnel. I am Chief
Philip C. Stittleburg of the La Farge Fire Department in Wisconsin and
Chairman of the National Volunteer Fire Council (NVFC). The NVFC is a
nonprofit organization representing the interests of the more than 1
million volunteer firefighters and EMS personnel in the United States.
Volunteer firefighters and EMS personnel serve in more than 20,000
communities across this country. Their services save local taxpayers
more than $37.2 billion each year. Without volunteer firefighters and
EMS personnel, many communities, particularly in rural areas, simply
could not afford to provide effective emergency services to their
citizens.
Volunteer firefighters and EMS personnel receive the same training
as their career counterparts and are professionals in all aspects of
the word other than the fact that they receive little or no pay for
their services. Volunteer emergency responders work full time jobs just
like everyone else in order to pay the bills. For instance, I work as
an assistant district attorney representing the State of Wisconsin.
The vast majority of emergency response in this country is handled
locally. Many states, understanding the value to public safety provided
by volunteer emergency responders, have passed laws allowing volunteers
to be late or miss work because they are responding to an emergency.
Some states even authorize paid leave for government employees who miss
work to respond to an emergency.
When a major incident occurs that overwhelms the ability of local
agencies to respond, state and, in the most extreme cases, federal
assistance can be brought to bear. This process is initiated by a
request for assistance by a local agency to the state, and states can
request assistance from other states through the Emergency Management
Assistance Compact (EMAC). Hurricane Katrina and the terrorist attacks
on 9/11 are extreme examples in which significant non-local assistance
was required for a sustained period of time, but on average more than
50 incidents occur each year that are severe enough to be declared
federal emergencies.
When non-local firefighters and EMS personnel are dispatched to a
major disaster they are expected to be able to serve for an extended
period of time--in the case of federal disasters, up to 14 days. For
many volunteer emergency responders, absence from their employment is a
major impediment to responding to a disaster for this amount of time on
relatively short notice.
Currently, volunteer firefighters and EMS personnel are not
protected against termination or demotion should they miss work when
called upon to respond to a major emergency or disaster. Volunteer
emergency responders have been known to return home after responding to
a major disaster to find that they no longer have jobs, even in cases
where they notified their employer that they would be absent. More
frequently, volunteers will check with their employers and either be
told that they can't go or that they have to take vacation time in
order to respond. My fellow volunteer firefighter John Alchevsky is
here today to tell you about the difficulties that he has had getting
time off from work to respond to major disasters.
Volunteer emergency responders who travel to a different part of
the country to dedicate their time and energy assisting fellow citizens
in desperate need of help don't deserve to be rewarded for their
efforts with a pink slip. The federal government should provide up to
14 days of job protection per year for volunteer emergency responders
who respond in an official capacity to a major disaster. This would not
only benefit first responders personally, but with employment
protection for volunteers in place, thousands of well-trained
firefighters and EMS personnel who volunteer for their local community
would be added to the pool of personnel that pre-emergency planners
will be able to count on as available to respond in case of a major
disaster.
In order to prevent abuse of this system, volunteers should be
required to inform their employers that they will be absent and provide
reasonable notifications over the course of their absence. Employers
should be able to obtain written verification from the agency
supervising the response to the major disaster that the employee
responded in an official capacity and the dates during which that
response took place. Additionally, employers should not be required to
compensate employees for the time that they are absent from work.
Thank you again for the opportunity to testify here today. I look
forward to answering any questions that you might have.
______
Chairman Andrews. Chief, thank you very much for your
testimony. We appreciate it.
We are now going to move to the section of the panel that
will deal with the issue of the employment rights of our
returning service members who are deployed, whether it is
overseas or within our country, and, Mr. Serricchio--did I get
it right this time?
Sergeant Serricchio. Yes, sir.
Chairman Andrews. Welcome to the subcommittee. We look
forward to your testimony.
STATEMENT OF SGT MICHAEL SERRICCHIO, AIR FORCE RESERVES,
RETIRED
Sergeant Serricchio. Thank you.
At the time of the 9/11 terrorist attacks, I was a member
of the United States Air Force Reserves. On September 30, 2001,
I was called to active duty to serve in the war on terror.
At that time, I was employed by Prudential Securities as a
financial adviser. I managed, with my partner, approximately
250 accounts with over $11 million in assets under management.
I was earning in excess of $75,000 per year.
When I returned from active duty 2 years later, I was
offered to return as a financial adviser, yet I was only
offered a handful of my former accounts to manage. I was told
that I could have an advance of $2,000 per month which I would
be required to repay from any commissions earned through cold
calling new accounts or from my personal savings.
Neither my prior earnings, my prior accounts, nor my prior
assets under management were taken into consideration in the
reinstatement offer. In short, I was asked to start my career
over from scratch, as there was no way I could support either
myself or my wife and 2-year-old daughter under the terms
provided. I was forced to seek employment elsewhere.
I am here today to describe what happened to me in an
effort to apprise this committee of the tactics employers are
taking to avoid their responsibilities under USERRA, the
significant impact such tactics have on the lives and families
of the service men and women affected, the morale of the entire
armed forces, and on the continued vitality of our volunteer
armed services.
Briefly stated, here is what happened. At 28, I was
accepted into the Morgan Stanley Dean Witter Financial Advisor
Training Program. Over the course of the next 18 months, I
successfully built a book of business that produced in excess
of $300,000 in annual gross commissions.
My success as a financial adviser resulted in my being
recruited by Prudential. As an incentive to join Prudential, I
was paid an upfront bonus of over $230,000. I joined Prudential
in October of 2000 and remained there until I was activated on
September 30 of 2001.
Although I was scheduled for only a 1-year activation, I
remained on active duty for more than 2 years' service in both
Saudi Arabia and in the United States.
I had joined the United States Air Force Reserves when I
was 20 years old. For my service in the Reserves, I received,
among other recognitions of distinction, a Commendation Medal,
a Meritorious Service Medal, an Air Force Longevity Medal, the
Airman of the Year, and the National Defense Service Ribbon.
After the 2 years of active duty fighting in the war on
terror, I was honorably discharged. I wrote to Wachovia
Securities, which 5 months prior had taken over Prudential's
retail brokerage department, informing them that I was seeking
reinstatement. No one at Wachovia contacted me for 7 weeks, and
I was not afforded the opportunity to return to work until 4
months after I had requested reinstatement.
When I was finally allowed to return to work, Wachovia told
me that only a handful of my former accounts would be returned
to me, accounts that would have produced negligible
commissions. Wachovia offered to provide me an advance of
$2,000 per month that I would repay through commissions earned
on cold calling new accounts or my depleting my personal
savings.
Under the terms provided, the likelihood of my being able
to sustain myself or my family was minimal. Worse yet, there
was a high likelihood that I would owe Wachovia money at the
end of each month.
Wachovia did not offer to pay me the salary I had been
earning prior to my activation while I would have attempted to
rebuild my business, nor did Wachovia offer to give me
preferential treatment when new, unsolicited accounts came into
the office.
In essence, even though I had previously been managing 250
accounts, $15 million in assets, and earning in excess of
$75,000, Wachovia wanted me to start my career over by making
cold calls.
Wachovia knew that I had a wife and family to support.
Wachovia knew that I could neither support myself nor my family
under the terms provided. I rejected Wachovia's offer of
reinstatement and brought suit under USERRA.
Wachovia has defended its offer under reinstatement
claiming that under USERRA it was not required to reinstate me
to a position that reflected my prior earnings, accounts, or
assets under management.
In addition, Wachovia has responded by instituting a
counterclaim against me, seeking to force me to repay the
balance of the original $230,000 signing bonus Prudential had
given me.
As a returning veteran, it worries me that if a prominent
company like Wachovia, which publicly boasts about its
commitment to veteran employees, is interpreting USERRA to
exclude consideration of prior earnings, duties, and
responsibilities, I can only imagine how other less prominent
companies are responding to returning veterans.
Job security is both the heart and soul of USERRA. As this
committee is undoubtedly aware, USERRA was intended to
encourage men and women to serve our country by assuring them
that upon their return, their jobs would be promptly waiting
for them.
Job security for those who are serving and for those who
will be called to serve in the future is essential to not only
maintain the morale of our troops, but to sustain the voluntary
Guard and Reserve armed force.
If our country does not insist on job security to those who
serve under the Guard and Reserve, then the continued vitality
of our volunteer armed services is in grave danger.
Again, I would like to thank you for the opportunity to
testify.
[The statement of Sergeant Serricchio follows:]
Prepared Statement of Michael Serricchio, Former Air Force Reservist
At the time of the 9/11 terrorist attacks, I was a member of the
United States Air Force Reserves. On September 30, 2001, I was called
to active duty to serve in the War on Terror. At that time, I was
employed by Prudential Securities as a financial advisor. I managed,
with my partner, approximately 250 accounts, with over $11 million in
assets under management. I was earning in excess of $75,000 per year.
When I returned from active duty, two years later, I was offered to
return as a financial advisor, yet I was only offered a handful of my
former accounts to manage. I was told that I could have an advance of
$2000 per month, that I would be required to repay from any commissions
earned through ``cold calling'' new accounts or from my savings.
Neither my prior earnings, my prior accounts, or my prior assets under
management were taken into consideration in the reinstatement offer. In
short, I was asked to start my career over from scratch. As there was
no way I could support either myself, or my wife and two-year old
daughter under the terms provided, I was forced to seek employment
elsewhere.
I am here today to describe what happened to me in an effort to
apprise this Committee of the tactics employers are taking to avoid
their responsibilities under USERRA and the significant impact such
tactics have on the lives and families of the service men and women
affected, on the morale of the entire armed forces, and on the
continued vitality of our volunteer armed services.
Briefly stated, here is what happened.
At 28, I was accepted into Morgan Stanley Dean Witter's Financial
Advisor Training Program. Over the course of the next 18 months, I
successfully built a book of business that produced in excess of
$300,000 in annual gross commissions.
My success as a financial advisor resulted in my being recruited by
Prudential. As an incentive to join Prudential, I was paid an upfront-
bonus of over $230,000. I joined Prudential in October 2000 and
remained there until I was activated on September 30, 2001. Although I
was scheduled for only a one year term, I remained on active duty for
more than two years, serving in both Saudi Arabia and in the United
States.
I had joined the United States Air Force Reserves when I was 20
years old. For my service in the Reserves, I received, among other
recognitions of distinction, a commendation medal, a meritorious
service medal, an air force service longevity medal, the airman of the
year, and a national defense service ribbon.
After two years of active duty fighting in the War on Terror, I was
honorably discharged. I wrote to Wachovia Securities, which five months
prior had taken over Prudential's retail brokerage department,
informing them that I was seeking reinstatement. No one at Wachovia
contacted me for seven weeks and I was not afforded the opportunity to
return to work until four months after I had requested reinstatement.
When I was finally allowed to return to work, Wachovia told me that
only a handful of my former accounts would be returned to me, accounts
that would have produced negligible commissions. Wachovia offered to
provide me an advance of $2,000 per month that I would repay through
commissions earned on cold calling new accounts or by depleting my
savings. Under the terms provided, the likelihood of my being able to
sustain myself, or my family, was minimal. Worse yet, there was a high
likelihood that I would owe Wachovia money at the end of each month.
Wachovia did not offer to pay me the salary I had been earning
prior to my activation while I attempted to rebuild my business.
Wachovia did not offer to give me preferential treatment when new
unsolicited accounts came into the office. In essence, even though I
had previously been managing 250 accounts, $11 million in assets, and
earning in excess of $75,000, Wachovia wanted me to start my career
over by making cold calls. Wachovia knew that I had a wife and family
to support. Wachovia knew that I could neither support myself, nor my
family, under the terms provided.
I rejected Wachovia's offer of reinstatement and brought suit under
USERRA. Wachovia has defended its offer of reinstatement, claiming that
under USERRA it was not required to reinstate me to a position that
reflected my prior earnings, accounts or assets under management. In
addition, Wachovia has responded by instituting a counter claim against
me, seeking to force me to repay the balance of the original signing
bonus Prudential had given me.
As a returning veteran, it scares me that if a prominent company
like Wachovia--which publicly boasts about its commitment to veteran
employees--is interpreting USERRA to exclude consideration of prior
earnings, duties and responsibilities, I can only imagine how other
less prominent companies are responding to returning veterans.
Job security is both the heart and soul of USERRA. As this
Committee is undoubtedly aware, USERRA was intended to encourage men
and women to serve our country by assuring them, that upon their
return, their jobs would be promptly waiting for them. Job security for
those who are serving, and for those who will be called to serve in the
future, is essential to not only maintain the moral of our troops, but
to sustain voluntary guard and reserve armed forces. If our country
does not insist on job security to those who serve under the guard and
reserve, the continued vitality of our volunteer armed services is in
grave danger.
______
Chairman Andrews. We thank you very, very much for coming
with us today. Thank you very, very much.
Mr. Wood, welcome to the subcommittee.
STATEMENT OF GEORGE WOOD, EMPLOYMENT SPECIALIST ATTORNEY,
LITTLER MENDELSON
Mr. Wood. Thank you, Mr. Chairman, Ranking Member Kline,
and distinguished members of the committee.
I am honored to be here today to present testimony
regarding the proposed amendment the committee is considering
under the Uniformed Services Employment and Reemployment Rights
Act, also known as USERRA.
I have practiced law for 22 years. I currently work for the
firm of Littler Mendelson which has 650 attorneys helping
employers each day comply with the various employment laws that
have been implemented at both the state and federal levels. For
approximately the last 10 years, I have advised employers
regarding their obligations under USERRA.
It is my opinion, based upon the clients I have worked with
over the years, that employers take very seriously their
obligations under USERRA. They also take very seriously the
commitment their employees make to this nation while they are
serving in the military.
Rightfully so, USERRA provides covered employees with broad
protection, and it is in light of these existing protections
that I believe that three of the four proposed amendments that
the committee is considering are unnecessary based upon the
current standards for USERRA.
As Representative Kline indicated, these are rifle shots
that are based at certain instances that have occurred once or
twice over the past 13 years.
The proposed amendments are, number one, the amendment to
USERRA Section 4303(2) regarding what is included within the
phrase ``benefit of employment'' to include wages. Secondly,
the amendment to USERRA Section 4311(a) to include potential
applicants for military service, and, third, the amendment to
Section 4311 to permit a claim for a disparate impact theory to
be used for liability.
I take no position here today with respect to the issue of
requiring states to receive federal funds to waive their 11th
Amendment rights.
I would like to start off talking briefly about the issues
of including wages in Section 4303(2) as a benefit of
employment. Currently, that section excludes specifically wages
or salary for work performed from the definition of ``benefits
of employment.''
When Congress enacted USERRA in 1994, there was obviously a
purpose behind its choice not to include wages or salary within
the definition of ``benefits of employment,'' and I believe the
Congress chose to exclude wages and salary from that definition
due to the impact that that inclusion would have on the
employer's legitimate ability to pay employees differently
based on valid factors, such as educational background and work
experience.
In addition to protecting benefits of employment, Section
4311(a) currently covers applicants and employees from
discrimination from such things as initial employment,
reemployment, retention in employment, and promotion. These
factors are, in essence, all the aspects of the employment
relationship, and they are all covered.
Including wages within the standard for benefits of
employment would unduly impact an employer's decision regarding
what wages to pay different employers. Rather than making
decisions based on legitimate and appropriate criteria,
employers would have the deck stacked against them from the
start.
Any minimal differentiation in wages between a covered
employee under USERRA and a noncovered employee would be viewed
in many instances as discrimination and would lead to a number
of different disputes over that issue. I do not believe that
that amendment would further the goals of USERRA, and I would
ask that it not be adopted.
With respect to potential applicants for military service,
the amendment to include potential applicants within the scope
of Section 4311(a) I do not believe is in keeping with what
Congress initially intended regarding USERRA. According to the
statutory purposes listed in USERRA, it is intended to provide
protections to persons who actually choose to participate in
military service to receive the act's benefits. Section 4301(a)
makes that very clear.
More importantly, however, attempting to determine who is a
potential applicant for military service would be almost an
impossibility for employers and for the courts. If the
amendment is adopted, effectively every person from age 18 to
40 would be included as a potential applicant for military
service. Also, we would have to then define what is a potential
application for military service. How far down the road do you
need to go before you become a potential applicant?
USERRA was designed to protect those persons who actually
participate in military service. It was not enacted to advocate
in favor of people of people participating in military service.
That is what the proposed amendment, in my view, seeks to have
happen. The committee should not support this proposed
amendment.
Finally, on the disparate impact theory, I believe that
adding that would be unnecessary in light of the already broad
protections provided by the act. As I am sure the committee is
already aware, a disparate impact theory allows a plaintiff to
challenge an employer's facially neutral policy. Here, USERRA
policies are very broad already.
The current disparate treatment analysis under USERRA
already applies and provides full protection for employees. For
example, an employer policy requiring a certain level of
advance notice before leave is taken is already governed by
USERRA. I do not think that you could find a disparate impact
analysis that would not already be covered by a disparate
treatment claim under USERRA.
Mr. Chairman, I want to thank you and the members of the
committee for your time here today.
[The statement of Mr. Wood follows:]
Prepared Statement of George R. Wood, Esq.
USERRA currently provides employees who perform service in the
uniformed services with broad protections. If fact, it is one of the
broadest federal leave statutes in existence. USERRA currently provides
significant rights, benefits and protections to employees regarding
military service, including the ability to take up to five (5) years of
leave, be reinstated in most instances to the position the employee who
have attained had he or she remained continuously employed, obtain
benefit protection while on leave, and be protected against
discrimination or retaliation on the basis of military service or
participation into an investigation regarding a possible USERRA
violation.
In my experience, most employers understand the significant
sacrifices being made by their employees who, either voluntarily and
involuntarily, serve in the uniformed services. To serve our country,
these employees are putting their lives on hold, if not also risking
their lives for those who remain behind. In recognition of these
sacrifices, a number of employers provide benefits to employees on
military leave that are not provided to employees on other types of
leave, such as supplemental compensation, employer-paid medical
benefits and benefit accrual during leave. It has not been my
experience that employers seek to shirk their duties and obligations
under USERRA, as reasonably interpreted.
The Committee is considering four (4) potential amendments to
USERRA: (1) An amendment to the definition of ``benefit of employment''
found in 38 U.S.C. Sec. 4303(2) to include wages as a benefit of
employment;\1\ (2) An amendment to 38 U.S.C. Sec. 4311 to explicitly
prohibit discrimination against potential applicants for membership in
a uniformed service; (3) An amendment to 38 U.S.C. Sec. 4311 to permit
covered employees to bring a claim based on a disparate impact
analysis; and (4) An amendment to require states receiving federal
funding to waive their Eleventh Amendment immunity rights. For the
reasons set forth below, I believe that the first three amendments
should not be adopted by the Committee. I take no position on the
fourth.
---------------------------------------------------------------------------
\1\ This would be accomplished by deleting the phrase ``other than
wages or salary for work performed'' from the definition of ``benefit
of employment'' found in Section 4303(2).
---------------------------------------------------------------------------
Summary of positions
1. Amending the definition of ``benefit of employment'' to include
wages as a benefit covered by USERRA would unduly expand the scope of
the protections offered under 38 U.S.C. Sec. 4311(a), which currently
protects ``initial employment,'' ``reemployment,'' ``retention in
employment'' and ``promotion,'' along with ``any benefit of
employment,'' for any person who ``applies to be a member of, performs,
has performed, applies to perform, or has an obligation to perform
services in the uniformed services.'' Including wages as a ``benefit of
employment'' would hamper an employer's ability to make legitimate
distinctions in wages between employees based on valid differences
between the work experiences and educational backgrounds of different
employees.
2. Amending 38 U.S.C. Sec. 4311 to include ``potential
applicants'' for military service would make the discrimination
prohibitions found in USERRA unworkable for employers. It would, in
essence, include all persons, ages 18 to 40, within the scope of
USERRA's discrimination protections regardless of whether an employee
ever truly intends to apply for service in the uniformed services. The
current definition properly protects those persons who actually apply
for service in the uninformed services and creates a workable and
effective prohibition against discrimination that is already effective.
3. Amending 38 U.S.C. Sec. 4311 to include a ``disparate impact''
analysis is unnecessary. Under the current provisions of USERRA, any
employer policy that violates the rights of a covered employee is
already governed by USERRA. A disparate impact analysis (which applies
to facially neutral policies that have the effect of discriminating
against a protected class of persons) would be redundant.
4. As stated above, I take no position with respect to amending
USERRA to require states receiving federal funds to waive their
Eleventh Amendment immunity rights.
Proposed amendments to USERRA
1. Amending the definition of ``benefit of employment'' found at 38
U.S.C. Sec. 4303(2) to include wages is unnecessary and may deny
employers the ability to make legitimate wage distinctions between
employees based on valid criteria.
Statement of position
USERRA provides that an employer may not deny, among other things,
any ``benefit of employment'' to an applicant or employee based of that
person's uniformed service membership, application for membership,
performance of service, application for service, or other uniformed
service obligation. 38 U.S.C. Sec. 4311(a). The current definition of
``benefit of employment'' excludes ``wages or salary for work
performed.'' 38 U.S.C. Sec. 4303(2); see also 20 C.F.R. Sec. 1002.
5(b). The Committee is considering an amendment to the definition of
``benefit of employment'' to delete the phrase ``other than wages or
salary for work performed'' from the language of Section 4303(2),
thereby including wages within that definition. This proposed amendment
should not be adopted.
The Committee's consideration of an amendment to Section 4303(2) is
apparently based on the Eight Circuit Court of Appeals' decision in
Gagnon v. Sprint Corp., 284 F.3d 839, 852-53 (8th Cir. 2002). In
Gagnon, the plaintiff claimed discrimination under Section 4311(a)
based on a $1,000 difference in pay between himself and another
employee. Id. The District Court granted the defendant summary judgment
on this claim, holding that there was no basis for a claim of
discrimination due to this slight pay differential. The Eighth Circuit
affirmed this ruling, properly noting that wages are not included
within the definition of ``benefit of employment'' under Section
4303(2). Significantly, however, no evidence of discrimination based on
wages existed in Gagnon.
To amend the definition of ``benefit of employment'' to include
wages would unduly impair an employer's ability to make legitimate
distinction in wages between employees. Employers seeking to make
legitimate wage distinctions would be faced with the prospect of a
claim under USERRA every time a USERRA covered employee is involved.
Congress' initial passage of USERRA recognized this potential impact on
employers by protecting employment (along with reemployment,
advancement and termination from employment and employment benefits),
while steering clear of specifically mandating wage protections for
covered employees. To include wages with the definition of ``benefit of
employment'' under Section 4303(2) would vastly alter the legal
landscape for employers with respect to wage distinctions. The result
of this amendment is likely to be that employers will be forced to pay
USERRA covered employees the same as non-covered employees (regardless
of legitimate differences in education or experience) in order to avoid
disputes over this issue. Thus, rather than creating a level playing
field for covered employees, USERRA would create a benefit for covered
employees not provided to non-covered employees. This change would not
be in keeping with the purposes of USERRA, one of which is to
``eliminate disadvantages to civilian careers which can result from''
uninformed service. The amendment would, in effect, create an advantage
for uniformed service that is not available to other employees.
The power of this amendment should not be ignored. Faced with
potential litigation over pay disputes, employers may be forced to pay
covered employees more and create an inequitable scale vis-a-vis other
employees. To do otherwise would subject employers to expensive and
time consuming litigation over the issue of a pay distinction between
several employees. This is true regardless of whether the pay
differential is based on legitimate criteria.
It also may be reasonably anticipated that the amendment would lead
to additional litigation in our already overburdened federal courts
regarding, as in Gagnon, a wage distinction as small as $1,000.
The present discrimination prohibitions in Section 4311(a)
(including protection for employment, reemployment, advancement and
retention of employment) properly and adequately protect covered
employees against all proper forms of discrimination, without unduly
impacting an employer's legitimate decisions regarding wages. The
Committee should recommend against adoption of the amendment.
2. Amending 38 U.S.C. Sec. 4311 to explicitly prohibit
discrimination against ``potential'' applicants for membership in a
uniformed service.
Statement of position
USERRA currently protects from discrimination or retaliation a
person who is a member of, applies to be a member of, performs, has
performed, applies to perform, or has an obligation to perform service
in a uniformed service. 38 U.S.C. Sec. 4311(a). The Committee is
considering an amendment to Section 4311(a) that would broad the scope
of these protections to include persons who are ``potential''
applicants for service membership. Section 4311(a) should not be
expanded to apply to ``potential'' applicants for uniformed service,
for good and practical reasons.
The proposed amendment to extend USERRA protections to
``potential'' applicants for uniformed service is premised upon a
single case arising in the Southern District of New York. In Podszus v.
City of Mount Vernon, N.Y., No. 06-cv-13771, 2007 U.S. Dist. LEXIS
57868 (S.D. N.Y. July 12, 2007), the court held that an individual who
chose not to submit an application for membership in a uniformed
service (allegedly due to urgings of his employer) was not entitled to
protection under Section 4311(a). In so ruling, the court noted that
USERRA does not extend to potential applicants to uniformed service.
The proposed amendment to extend USERRA's protections to
``potential'' applicants for uniformed service disregards the purposes
of USERRA and presents a significant dilemma for practical application.
First, contrary to the implication of the proposed amendment, the
Congressional purpose of USERRA is not to advocate membership in a
uniformed service by protecting the potential for such service. See 38
U.S.C. Sec. 4301(a). Rather, the purpose of USERRA is to provide
protections to those persons who actually choose to participate in
military service. See id. The distinction is not without a difference
as it relates to the proposed amendment. Protecting ``potential''
applicants under USERRA would, in effect, create a Congressional
preference for military service. This is not USERRA's intent. Id.
Second, the proposed extension of USERRA's protections to
``potential'' applicants presents problems for practical application as
the amendment. Who qualifies as a ``potential'' applicant? What minimum
affirmative steps toward membership does one have to take to qualify as
a ``potential'' applicant? What remedies does a ``potential'' applicant
qualify for under USERRA (since the ``potential'' applicant has never
applied for leave and has never been denied any benefits)? It would be
difficult, if not impossible, to practically and properly define when
an individual qualifies as a ``potential'' applicant or the
circumstances of a ``potential'' application. As a practical matter,
anyone of military service eligible age, i.e., 18 to 40 years of age,
could claim USERRA protections as a ``potential'' applicant. In
addition, USERRA entitles service members to the equitable relief of
restoration to prior civilian employment status or damages to
compensate for wages or benefits lost in connection with the civilian
employment. USERRA does not provide damages to compensate an individual
for some anticipated (and speculative) loss of service benefits or
other damages resulting from the alleged inability to join the service.
Such was not the intent of USERRA. To amend USERRA to include
``potential'' applicants would expand its reach beyond reasonable
bounds. (For example, the Age Discrimination in Employment Act protects
persons ages 40 to 70, not those persons who have the ``potential'' of
reaching age 40.)
The existing USERRA definitions make clear that in situations when
an individual has not yet applied for service, he or she is simply not
eligible for USERRA's statutory protections. There is no ambiguity in
this definition; it is both clear and workable in practical application
and it neither encourages nor discourages application for membership in
the uniformed services. This definition is working well, and is not in
need of amendment.
3. Amending 38 U.S.C. Sec. 4311 to explicitly prohibit employer
policies, procedures and practices that have a ``disparate impact'' on
service members and others who are protected by USERRA is unnecessary.
Statement of position
Extending the already broad protections of USERRA to include a
disparate impact analysis sometimes used under other discrimination
statutes in unnecessary. USERRA's current protections are appropriately
analyzed under the standard ``disparate treatment'' legal analysis. In
fact, given that any employer policy that has the actual effect of
discriminating against a covered employee is already within the scope
of USERRA, no disparate impact analysis is required.
While the proposed amendment seeks to include protections from
facially neutral policies that have a ``disparate impact'' on uniformed
service members, this largely dormant theory is rarely used and will be
difficult to apply in USERRA circumstances. The disparate impact theory
applies where a facially neutral policy has a significant adverse
impact on a protected class of employees. See Griggs v. Duke Power Co.,
401 U.S. 424 (1971). If protected class employees prove that a neutral
practice causes a disparate impact on them, the employer may
demonstrate that the practice ``is job related for the position in
question and consistent with business necessity.''
Unlike other statutes such as Title VII of the Civil Rights Act of
1964, there is under USERRA only one class of protected persons--those
meeting the criteria set forth in Section 4311. Thus, an employer's
treatment of such persons through various policies need not to be
analyzed as a ``disparate impact,'' since the disparate treatment
analysis already exists and is applicable.
Moreover, it is difficult, if not impossible to envision a
situation where an employer's policies are not already be governed by
the disparate treatment analysis already applicable under USERRA. For
example, a facially neutral employer policy requiring two (2) seeks
advanced notice before taking a leave of absence would already be
governed by 38 U.S.C. Sec. 4312(a)(1). Similarly, a policy limiting
the amount of unpaid leave an employee may take would be governed by 38
U.S.C. Sec. 4312(c). I cannot envision an employer policy that would
not be already fall within the scope of the disparate treatment
analysis used under USERRA if the policy attempts to alter the already
specific and detailed requirements of the statute.
Finally, it will be difficult and impracticable to apply a
disparate impact analysis to situations involving alleged USERRA
violations. Individual employers do not typically have significant
numbers of USERRA covered employees compared to the employer's entire
employee population, let alone a statistically significant population
of such employees. Because a disparate impact analysis typically
requires the use of experts and sophisticated statistical methods and
findings, for any given employer, it will be difficult to obtain a
sufficient statistical group upon which to apply the analysis for
purposes of USERRA. See El v. SEPTA, 479 F.3d 232 (3d Cir.
2007)(dismissing employee's disparate impact claim where employer's
policy barred the hiring of persons who had conviction records); Malave
v. Potter, 320 F.3d 321 (2d Cir. 2003)(employer may defend disparate
impact claim by showing the statistical sample used by the employee is
too small to establish an inference of discrimination); Shutt v. Sandoz
Crop Protection Corp., 923 F.2d 722 (9th Cir. 1991)(statistical
disparities must be sufficiently substantial in order to raise an
inference of causation, and the statistical evidence may not be
probative if the data is small or incomplete).
Given the current breadth of existing USERRA statutory protections
under the disparate treatment analysis, there is no need to extend
disparate impact protections to covered employees under USERRA. Current
statutory protections, therefore, are appropriately analyzed under the
``disparate treatment'' theory of discrimination (which requires
evidence of actual discriminatory intent). No appropriate basis exists
to include a disparate impact analysis.
4. Amending USERRA to require States to waive their Eleventh
Amendment immunity rights in order to seek federal funding.
Statement of position
I take no position with respect to this issue.
______
Chairman Andrews. Thank you very much, Mr. Wood.
Ms. Piscitelli, welcome to the subcommittee.
STATEMENT OF KATHRYN PISCITELLI, MEMBER, EGAN LEV AND SIWICA,
P.C.
Ms. Piscitelli. Chairman Andrews and members of the
subcommittee, good afternoon.
I am Kathryn Piscitelli from Orlando, Florida. My remarks
today will focus on several issues that I urge the subcommittee
to look at to improve USERRA's protection of our service
members in civilian employment: one, mandatory arbitration;
two, disparate impact; three, federal funding as a hook to
override state sovereign immunity; four, wage discrimination;
and, five, protection of potential applicants for military
service.
I know that during this hearing, you are also taking
testimony on the huge problem of employers imposing mandatory
arbitration as a condition of employment. Mandatory arbitration
is also a major problem for returning service members under
USERRA. However, the Civil Rights Act of 2008, H.R. 5129, of
which you are an original co-sponsor, Chairman Andrews, would
solve the mandatory arbitration problem under USERRA. I very
much appreciate your leadership and co-sponsorship of H.R.
5129, and I urge Congress to pass it as soon as possible.
H.R. 5129 also would improve protection of service members
under USERRA in another significant way, by providing a federal
funding hook to trump states' 11th Amendment immunity from
private suits for monetary relief. USERRA makes available to
state employees the same monetary remedies as it does for
private and local government employees. Yet, in the wake of
Supreme Court decisions narrowing the circumstances under which
federal laws can effectively override state immunity, it has
become virtually impossible for individuals to bring private
action against state employers under USERRA.
The way out of this conundrum is to amend USERRA to
condition states' receipt of federal funding on their waiver of
11th Amendment immunity. That is precisely what H.R. 5129 would
do.
Again, thank you, Chairman Andrews, for your co-sponsorship
of this crucial legislation.
USERRA's prohibition on military-related discrimination
would be strengthened by amending USERRA to clarify that the
act protects through Section 4311(a) against employment
policies and practices that on their face are
nondiscriminatory, but have a disparate impact on service
members.
Although other statutes expressly provide for disparate
impact claims, USERRA does not. As a result, there is judicial
uncertainty as to whether disparate impact claims are available
under USERRA. Amending the statute would remove the cloud of
doubt and thereby ensure that service members who are harmed by
facially neutral policies and practices have a remedy under
USERRA.
Removing or redrafting the exemption of wages or salary for
work performed from the definition of ``benefit of employment''
at Section 4303, Subsection 2 of USERRA is warranted as well.
The exemption evidently was included to clarify that USERRA
does not require payment of wages or salary to employees when
they are away for military service and thus not performing work
for their employers.
But the exemption is ambiguous and, as a result, can and,
in fact, has been misconstrued as authorizing pay
discrimination against service members. This is truly not an
outcome that Congress intended when it enacted USERRA.
In addition, I recommend amending Section 4311(a) to
explicitly prohibit discrimination against potential applicants
for membership in the uniform service. In enacting USERRA,
Congress clearly intended that potential applicants for the
service would fall within the ambit of the act's ban on
service-related discrimination.
However, there is no express provision to this effect in
the statute. In the absence of express protection for such
persons, there is a risk that employers will deter employees
from joining the military and that courts will do nothing to
stop them.
In conclusion, protection of our service members in
civilian employment will be improved if mandatory arbitration
is abolished and USERRA is amended by providing for disparate
impact claims, adding a federal funding hook to override state
immunity, clarifying the wage exemption from the ``benefit of
employment'' definition, and explicating discrimination against
potential applicants for military service.
It is great that Congress is looking into these issues.
I appreciate the opportunity to testify today.
[The statement of Ms. Piscitelli follows:]
Prepared Statement of Kathryn Piscitelli, Esq., USERRA Practitioner
Chairman Andrews and Members of the Subcommittee, good afternoon. I
am Kathryn Piscitelli, of Orlando, Florida. I am a USERRA practitioner
and have taken a special interest in USERRA since its enactment. I am a
member of the National Employment Lawyers Association (NELA). In 2004,
I served as Chair of NELA's USERRA Task Force, which prepared NELA's
comments on the Department of Labor's then-proposed USERRA regulations.
I have been active in educating other lawyers about USERRA, including
giving seminar presentations on and writing articles and other
publications about USERRA, as well as providing guidance to lawyers who
represent USERRA claimants.
Since USERRA's enactment in 1994, I have tracked case law and other
developments under USERRA and have seen how valuable the statute can be
to returning servicemembers. I have also, however, seen a number of
ways in which the statute could be strengthened, to provide more
comprehensive protection for these employees. I think most people would
agree that we should do as much as we can to ensure that the men and
women who return to civilian life from Iraq, Afghanistan, and indeed
any military service, are able to pick up their lives again with as
little disruption as possible. These people have made major sacrifices
and should not be subjected to diminished employment opportunities as a
result of their lengthy, and sometimes repeated, absences from the
workplace.
My remarks today will focus on several issues that I urge the
subcommittee to look at to improve USERRA's protection of our
servicemembers in civilian employment: (1) mandatory arbitration; (2)
disparate impact; (3) federal funding as a ``hook'' to override state
sovereign immunity; (4) wage discrimination; and (5) protection of
potential applicants for service. I think that if Congress did these
five things, it would strengthen USERRA's protection of servicemembers
from discrimination, foster elimination of unnecessary barriers to
equal employment opportunity for servicemembers, and help
servicemembers who have suffered violations of their rights under
USERRA by improving the Act's enforcement and remedial provisions.
Mandatory arbitration
I know that during this hearing you are also taking testimony on
the huge problem of employers imposing mandatory arbitration as a
condition of employment. Mandatory arbitration is also a major problem
for returning servicemembers attempting to get their jobs back under
USERRA. In fact, in 2006, the Court of Appeals for the Fifth Circuit
held that USERRA claims are subject to mandatory arbitration under the
Federal Arbitration Act, despite express language in Section 3402(b) of
USERRA prohibiting contracts (among other things) that limit any
``right or benefit'' provided by the law, ``including the establishment
of additional prerequisites to the exercise of any such right or the
receipt of any such benefit.''1
However, the Civil Rights Act of 2008 (H.R. 5129), of which you
were an original co-sponsor, Chairman Andrews, would solve the
mandatory arbitration problem under USERRA. I very much appreciate your
leadership in co-sponsoring H.R. 5129, and urge Congress to pass it as
soon as possible.
Federal funding ``hook''
H.R. 5129 also would improve protection of servicemembers under
USERRA in another significant way--by providing a federal-funding hook
to trump states' Eleventh Amendment immunity from private suits for
monetary relief. USERRA makes available to state employees the same
monetary remedies as it does for private and local government
employees. Yet, in the wake of Supreme Court decisions narrowing the
circumstances under which federal laws can effectively override state
immunity, it has become virtually impossible for individuals to bring
private actions against states under USERRA. The way out of this
conundrum is to amend USERRA to condition states' receipt of federal
funding on their waiver of Eleventh Amendment immunity. That is
precisely what H.R. 5129 would do. Again, thank you, Chairman Andrews,
for your co-sponsorship of this crucial legislation.
Disparate impact
USERRA's prohibition on military-related discrimination would be
strengthened by amending USERRA to clarify that the Act protects
against employment policies and practices that on their face are
nondiscriminatory but have a disparate impact on servicemembers.
Although other statutes expressly provide for disparate impact claims,
USERRA does not. As a result, there is judicial uncertainty as to
whether disparate impact claims are available under USERRA.2 Amending
the statute would remove the cloud of doubt and thereby ensure that
servicemembers who are harmed by facially neutral policies and
practices will have a remedy under USERRA.
Wage discrimination
Removing or redrafting the exemption of ``wages or salary for work
performed'' from the definition of ``benefit of employment'' at Section
4303(2) of USERRA is warranted as well. This exemption evidently was
included to clarify that USERRA does not require payment of wages or
salary to employees when they are away for military service and thus
not performing remunerable work for their employers.3 But the exemption
is ambiguous and, as a result, can be and, in fact, has been
misconstrued as authorizing pay discrimination against servicemembers.4
This is surely not an outcome that Congress intended when it enacted
USERRA.
Protection of potential applicants for service
In addition, I recommend amending Section 4311(a) to explicitly
prohibit discrimination against potential applicants for membership in
a uniformed service. In enacting USERRA, Congress clearly intended that
potential applicants for the service would fall within the ambit of the
Act's ban on service-related discrimination.5 However, there is no
express provision to this effect in the statute. In the absence of
express protection for such persons, there is a risk that employers
will deter employees from joining the military, and that courts will do
nothing to stop them.6
Conclusion
In conclusion, protection of our servicemembers in civilian
employment will be improved if mandatory arbitration is abolished and
USERRA is amended by providing for disparate-impact claims; adding a
federal-funding hook to override state immunity; clarifying the wage
exemption from the benefit-of-employment definition; and explicitly
prohibiting discrimination against potential applicants for military
service.
It's great that Congress is looking into these issues. I appreciate
the opportunity to testify.
endnotes
\1\ Garrett v. Circuit City Stores, Inc., 449 F.3d 672 (5th Cir.
2006).
\2\ See, e.g., Miller v. City of Indianapolis, 281 F.3d 648, 651
(7th Cir. 2002) (leaving open the question of ``whether a disparate
impact claim can be prosecuted under USERRA'').
\3\ See S. Rep. No. 103-58 (1993) at 41 (``[S]ection 4303(2) would
define * * * `benefit of employment' * * * as any advantage, profit,
privilege, gain, status, account, or interest (other than wages or
salary for work not performed while absent from employment) that
accrues by reason of an employment contract or an employer practice or
custom and includes by way of illustration the various attributes of
the employment relationship that might be affected by an absence from
employment.'') (Emphasis added.)
\4\ See, e.g., Gagnon v. Sprint Corp., 284 F.3d 839, 852-53 (8th
Cir.) (because ``benefit'' as defined in USERRA excludes wages or
salary for work performed, employee could not bring claim alleging that
employer discriminated against him by paying a him lower starting
salary because of his military background), cert. denied, 537 U.S. 1001
and 537 U.S. 1014 (2002).
\5\ See H.R. REP. No. 103-65, pt. 1, at 23 (1993), as reprinted in
1994 U.S.C.C.A.N. 2449, 2456 (``Section 4311(a) would reenact the
current prohibition against discrimination which includes
discrimination against * * * current employees who seek to join Reserve
or National Guard units * * *'') (citing Boyle v. Burke, 925 F.2d 497
(1st Cir. 1991)). In Boyle, a case under USERRA's predecessor
legislation, the court found that the law protected against policies
that deter employees from joining the reserves. See Boyle, 925 F.2d at
502.
\6\ See, e.g., Podszus v. City of Mount Vernon, N.Y., No. 06 Civ.
13771, 2007 WL 2230106 (S.D. N.Y. July 12, 2007) (employee's claim
alleging that employer violated Sec. 4311(a) by denying him permission
to join Navy Reserve was dismissed because as potential, rather than
actual, applicant for service, employee was not protected under Sec.
4311(a)).
______
Chairman Andrews. Thank you very much.
I want to thank the entire panel for very illuminating and
well-thought-out testimony. Thank you, each of you.
We will begin with the questions.
Mr. de Bernardo, your organization keeps track of data on
these arbitration issues?
Mr. de Bernardo. We do not, but we do keep track of the
data that is generated by research out there----
Chairman Andrews. Could you tell us----
Mr. de Bernardo [continuing]. Many of which is included in
the testimony.
Chairman Andrews. How many people, when presented with an
application or employment contract that have a mandatory
arbitration clause, refuse to sign it and get hired anyway? Do
you know?
Mr. de Bernardo. I have never seen statistics in that
regard.
Chairman Andrews. Do you know if any are available?
Mr. de Bernardo. I have never seen them. I would be
interested to know that as well.
Chairman Andrews. I would be very interested. If you now, I
would invite you to supplement the record.
Ms. Jones, did anybody explain to you that the agreement
you signed with Halliburton had this binding arbitration
provision in it?
Mr. Jones. No, I found out about the arbitration clause in
my contract when I came home and sought legal representation
for a civil suit. You know, I was 20 years old at the time. I
would not even have known what arbitration was or probably how
to even pronounce it.
Chairman Andrews. And I am just going to ask you based on
your experience. When you applied for the job at Halliburton,
when did you sign the contract? Was it the end of the process
or after you were interviewed?
Mr. Jones. We had to go to a month of training before we
were to go Iraq, and it was the last day of that month of
training, and it was an 18-page document, and it was a very
tiny paragraph.
Chairman Andrews. Did anyone explain to you at any time
during that month that if you agreed to work for Halliburton,
you would not be able to pursue a claim in court?
Mr. Jones. No, I had no idea.
Chairman Andrews. Did anyone who was your fellow trainee
ask?
Mr. Jones. No.
Chairman Andrews. How old were your fellow trainees at the
time?
Mr. Jones. Some were older. It was an array of ages.
Chairman Andrews. Did anyone at Halliburton advise you that
you should talk to a lawyer before you sign the contract?
Mr. Jones. No.
Chairman Andrews. Again, on a very personal level, I am
sorry you have to be here today. I just have an awful lot of
respect for what you have been able to do, and I hope the
result of what you have been able to do is that others will not
be subject to not only the personal violations you have
suffered, but the violation of your rights, and we appreciate
that.
Mr. Jones. Right.
Chairman Andrews. I want to ask Mr. Wood a question about
his testimony about USERRA.
You make a comment in your testimony that the amendment in
front of us would, in effect, create an advantage for uniform
service that is not available to other employees.
I just want you to focus on these facts for a minute that,
you know, a person builds a book of business, goes away because
he has volunteered to serve in the armed forces, comes back and
the book of business is taken away, and the person has to start
all over again, whereas the person he sat next to in the
cubicle next door does not enlist in the armed forces, spends
those 2 years furthering his or her book of business, and is
able to have a substantially higher income. Is that fair, do
you think?
Mr. Wood. Mr. Chairman----
Chairman Andrews. Is that fair to the person that
volunteers to wear the uniform?
Mr. Wood. Mr. Chairman, I have read through the facts. I do
not know that I can comment on Mr. Serricchio's case, but I
know that----
Chairman Andrews. I am actually not asking you to comment
on his case. The hypothetical that I put to you.
Mr. Wood. The hypothetical that you gave--I guess I would
have a couple of questions to figure out effectively why the
work went away because between the time Mr. Serricchio left and
the time he came back, there were a lot of different factors
that happened. I think a lot of people lost a lot of business.
Under the factors that you gave, there has to be a decision
made. Yes, if his book of business was taken away and not given
back, that would be one thing. But if because he left, his book
of business decreased because of other economic factors, I
guess I do not know. I am not sure where we put the burden
here. Are we putting the burden on the employer or----
Chairman Andrews. Well, it seems pretty obvious the burden
falls on the person who volunteers to wear the uniform and goes
away. I mean, if you have a client-based business and you
cannot be there to service the clients for that 2-year period,
it seems to me it is kind of inevitable that the business is
going to go away.
Mr. Serricchio, what do you think would have been a fairer
accommodation under your facts when you came home? What would
have been fair for the employer to do, in your opinion?
Sergeant Serricchio. Well, sir, thank you. Under USERRA,
under the statute, it clearly states that the returning veteran
is to be brought back at the pay status, the seniority, the
benefits, the marketability that he or she would have attained
as if they never had left.
There are at minimum a few points that probably could have
been entertained, one of which would have been to offer me a
salary comparable to what it would have been had I never gone
while I rebuilt my business. If that was not an option, perhaps
handing accounts over that could have yielded a comparable
salary, again, to afford me the time to rebuild my business.
What was basically offered to me was the same rate of pay
that a commissioned broker gets, and it is essentially
meaningless if you have nothing to apply that rate to, if your
assets are gone, if your book is business is gone, and some of
these options came from Captain Samuel Wright who actually
spent the better part of 37 years putting together the product
that we all know as USERRA.
So, sir, to answer the question, I think those were some of
the points that could have been entertained.
Chairman Andrews. I appreciate that.
My time has expired.
And we now turn to Mr. Kline for his 5 minutes.
Mr. Kline. Thank you, Mr. Chairman.
And thank you to the witnesses for your trip here, for your
patience, and for your excellent testimony.
And I am on the green light-red light system as well, so I
have about 5 minutes. I am not sure where to start. It is quite
an array out there.
So, if you will just bear with me, I will kind of shotgun
my way through, getting away from the rifle shot program that I
was talking about earlier.
Mr. Serricchio, could I just ask for the record, did your
employer pay you while you were in uniform?
Sergeant Serricchio. Sir, I was gone, as I mentioned in my
testimony. I was given a 1-year activation when I first was
activated, and into that first year, we were subsequently given
a second term.
Mr. Kline. Okay.
Sergeant Serricchio. During the first----
Mr. Kline. Thank you. Thank you. I appreciate that very
much.
Sergeant Serricchio. Can I answer?
Mr. Kline. Really, I am very limited on time, and I have
nine more witnesses. Thank you. I need to keep moving through
here.
Ms. Jones, I want to add my apologies as well. I mean, this
is awful what has happened to you. I cannot imagine what the
other side of your story is. I know in many of these cases that
there are two sides to every story, and I suppose there are two
sides to yours, too. I just cannot imagine what it is. It is
just absolutely atrocious.
Mr. de Bernardo, in looking at Ms. Jones's case, a couple
of things I want to sort of cover here. There is nothing in
your understanding of the arbitration rules or anything that
prevents criminal action being taken care of in court, right?
Mr. de Bernardo. That is correct.
Mr. Kline. These are criminal acts here----
Mr. de Bernardo. That is right.
Mr. Kline [continuing]. And, in my judgment, it is pretty
clear that somebody needs to be in jail, and there is nothing
that would preclude that. Is that right?
Mr. de Bernardo. That is correct.
Mr. Kline. Okay. And then I am led to believe--and I just
need some clarification here--and we are probably not going to
get the answer to all of these in a few minutes, but is it
possible for a government agency to bring a civil claim on Ms.
Jones's behalf?
Mr. de Bernardo. Yes, you cannot waive your rights under,
for example, the EEOC, Title VII, with mandatory arbitration or
not. You still have that recourse of going to EEOC or to a
state agency. You cannot waive that prior to a dispute, post-
dispute, at any time.
Mr. Kline. I see.
Mr. de Bernardo. So that would be the example that would be
most common and applicable.
Mr. Kline. Well, it is such a horrible----
Mr. de Bernardo. It certainly sets a precedent.
Mr. Kline. It is such a horrible situation. I would just
like to think that there are some other remedies out there, and
certainly criminal court--but this is so appalling. There is no
possible explanation of----
Mr. de Bernardo. And beyond the criminal justice system is
the civil justice system as well, in which, obviously,
litigation is being pursued in that regard.
Mr. Kline. Civil litigation is being pursued?
Mr. de Bernardo. Damages. Well, I understand that there is
the civil suit that is pending as well.
Mr. Kline. And the arbitration rules do not preclude that?
Mr. de Bernardo. I do not know what the status is. You
know, I was asked to testify on----
Mr. Kline. Okay. Could I ask Ms. Jones? You are trying to
pursue civil action in civil court and being told you cannot?
Is that right?
Mr. Jones. By the other side. It is pending before the
judge whether or not it would be fair to arbitrate my claim or
not.
Mr. Kline. Okay. Still to be determined?
Mr. Jones. Right.
Mr. Kline. Okay. Thank you very much.
And then, Mr. Wood, in view of the changes that were
proposed by Ms. Piscitelli--I probably messed that up. I know.
I am sorry.
Ms. Piscitelli. That is fine.
Mr. Kline. Can you expand on your concerns which you
started to set forth in your testimony in regards to the
changes that she has proposed?
Mr. Wood. Yes. Thank you, Mr. Kline.
Mr. Kline. You will probably only be able to pick one of
them, so----
Mr. Wood. Right. I think the biggest concern that I would
have at this point would be with the disparate treatment
analysis simply because the breadth of USERRA is such that I
cannot imagine a situation that would not be covered from an
employer's policy perspective by USERRA to protect someone's
rights. The disparate treatment analysis covers those
adequately.
I have handled cases where a lot of those issues have been
raised. No one has ever sought a disparate impact analysis, and
the problem with the disparate impact analysis is you have to
have a statistically substantial sample of people to analyze
and, typically, most employers do not have that many people out
on leave. So it is very difficult to have that analysis applied
to a case where you already have such broad protections.
Mr. Kline. All right. Thank you.
I see it is about to turn red. I will yield back, Mr.
Chairman.
Chairman Andrews. I thank the gentlemen.
The Chair recognizes the gentlewoman from California, Ms.
Sanchez, for 5 minutes.
Ms. Sanchez. Thank you, Mr. Chairman. And I have to commend
you for holding this hearing. I also chair the Commercial
Administrative Law Subcommittee on the Judiciary which has
jurisdiction over mandatory binding arbitration clauses and
contracts, and we have had a number of hearings on this very
issue in many different contexts, including in the nursing home
context, home-building context, and also the employment
context, which, I think, is a nice crossover issue for this
committee.
I would like to start with Ms. Jones and, again, echo the
sentiments of our chairman. I think it is very courageous that
you are here to talk about your story.
Mr. Jones. Thank you.
Ms. Sanchez. What do you think would have happened to you
had you refused to sign that binding arbitration contract at
the end of your training right before you were ready to deploy?
Mr. Jones. I do not think I would have been hired.
Ms. Sanchez. My guess is that you probably would not have
been hired as well.
You said that you really did not know much about binding
arbitration, probably would not even know how to pronounce it.
I am wondering, in your wildest imagination, would you have
ever thought that signing that contract would have, for all
intents and purposes, insulated criminal behavior like being
drugged and raped from your coworkers? Could you have even
imagined that that would have happened?
Mr. Jones. I could have not ever imagined that, and I could
never imagine signing my rights away to a trial by jury.
Ms. Sanchez. That, I think, speaks to Mr. Foreman's concern
about the way that mandatory binding arbitration changes the
substantive rights that individuals have. Some of the problems
that we have seen in the different contexts include a lack of
ability to get full discovery. You have very limited discovery
in arbitration. You do not have a trial by jury. In many
instances, if there is a bad arbitration decision, there is no
right to appeal.
And so there is a whole plethora of rights that people sign
away, not knowing, simply because they are looking to be
employed and do not understand at the time that they are
signing these contracts that all of these can come back to
haunt them later.
I am curious, Ms. Jones. Were you told by human resources
at Halliburton about the sexual harassment and assaults that
were occurring in Iraq?
Mr. Jones. No.
Ms. Sanchez. Did anybody talk to you about that?
Mr. Jones. It was not disclosed.
Ms. Sanchez. And do you think if you had known about that,
you might have sort of considered whether or not you wanted, in
fact, to go work there?
Mr. Jones. I would not have gone, especially knowing that I
was going to be placed in a predominantly all-male barrack in
that type of atmosphere. I would not have gone.
Ms. Sanchez. And do you think that Halliburton lived up to
its part of the employment contract to provide you with an
environment that was free from sexual harassment and abuse?
Mr. Jones. Absolutely not.
Ms. Sanchez. Thank you.
Mr. de Bernardo, in reading your written testimony, you
write that there would be winners and losers--and I am using
your terminology--if H.R. 5129 is enacted, and in your written
testimony, you say that the only winners would be plaintiffs'
lawyers and undeserving employees.
What about the employee sitting to your left that just
testified on the panel today? Do you think Ms. Jones is an
undeserving employee?
Mr. de Bernardo. We are not here to talk about arbitration
and H.R. 5129. As I have pointed out, Representative Sanchez,
overwhelmingly, the people who participate in binding
arbitration favor it, even after the process is done, which
is----
Ms. Sanchez. Something can be popular and still not be fair
or just or, you know, adhere to our notions of fair play and
justice in this country?
Mr. de Bernardo. Well, there may be exceptions, but, in
general, mandatory binding arbitration is a very positive
workplace practice that is embraced by both sides, including
plaintiffs' lawyers and defense lawyers, with respect to----
Ms. Sanchez. I think the----
Mr. de Bernardo [continuing]. Employees themselves.
Ms. Sanchez. It depends sort of on your case, and it
depends on what the outcome of your case is. Do you believe
that there are no bad actors in the employer field?
Mr. de Bernardo. No, of course not. I think there are bad
actors in every field.
Ms. Sanchez. Okay. If there is even one employer who is a
bad actor, would not an injunction against bad practices and
the imposition of punitive damages set an example that could
perhaps be a deterrent against other employers engaging in that
similar behavior?
Mr. de Bernardo. You know, in the American Arbitration
Association itself, there is more than 200,000 arbitrations a
year. They are just one of the groups that provide arbitrators.
There are literally hundreds and hundreds of thousands of
arbitrations a year.
Ms. Sanchez. But I am asking you----
Mr. de Bernardo. What we know is----
Ms. Sanchez. If there is a bad actor----
Mr. de Bernardo. What we know is that in arbitration,
employees are more likely to prevail than in litigation. They
get higher median awards.
Ms. Sanchez. I am going to have to stop you there because I
do not believe that is the case. I believe in many instances
employees who would like to litigate cases and find themselves
trapped by binding arbitration cannot even find an attorney to
take their case because they know that the deck is stacked
against them in binding arbitration.
Many times, you have the repeat arbitrator problem in which
the employer pays for the arbitrator so they have a built-in
incentive to rule on behalf of the employer because they are
the ones that are footing the bill for their paycheck.
The other----
Mr. de Bernardo. No, I think just the opposite is true.
Ms. Sanchez. The other----
Mr. de Bernardo. I think there is more access----
Ms. Sanchez. Pardon me.
Mr. de Bernardo [continuing]. To justice through
arbitration.
Ms. Sanchez. The other issue that I want to sort of dispute
is you said that there are less legal fees in arbitration than
there are if you litigate. Arbitration oftentimes saddles the
claimants with a whole plethora of extra fees that they would
not be charged had they gone to court.
The National Arbitration Forum charges $75, for example, to
issue a subpoena, which is provided for free by the court
system. The NAF also charges fees for discovery requests of
$150 and continuances of $100, which are also free if a
litigant is actually in court.
Chairman Andrews. Excuse me. Could we just wrap up and have
him answer the question?
Ms. Sanchez. Sure. I am interested in knowing when you talk
about what is cost effective, is what is cost effective to the
employer always cost effective to the employee in the
arbitration setting?
Mr. de Bernardo. The clients of Jackson Lewis and,
certainly, the clients that I advise pay for all the expenses
of arbitration and mediation. Typically, it is a two-step
process, mediation, then arbitration, or a three-step process,
informal mediation, formal mediation, and then arbitration. I
certainly would advise all employers and certainly employers
that I am familiar with to pay all the costs of arbitration.
What you do not have in arbitration is giving 33 percent or
40 percent of whatever the award is to a plaintiffs' lawyer.
That does not occur in arbitration. It does happen in lawsuits.
Ms. Sanchez. I recognize that my time has expired, and I
would just say, in many instances, that is the only access to
legal recourse that wronged employees have, and with that, I
will yield back.
Thank you, Mr. Chairman.
Chairman Andrews. I thank the gentlelady very much.
The Chair recognizes the gentleman from Louisiana, Dr.
Boustany, for 5 minutes.
Dr. Boustany. Thank you, Mr. Chairman.
Mr. de Bernardo, one concern we have heard from the other
side of the aisle in particular is that arbitration agreements
are too often one-sided or unfair and that an employee is
unduly disadvantaged by these one-sided agreements.
In your experience and observation, are the courts
routinely enforcing one-sided or lopsided arbitration
agreements, and are the courts adequately serving their
gatekeeper function to ensure that unfair or unbalanced
agreements are struck down?
Mr. de Bernardo. Congressman, I am a defense lawyer in
employment areas. You know, perhaps the single most important
aspect of evaluating a case when it comes in is who the judge
is, who is going to be assigned. There is a great variety in
terms of the judiciary; who has appointed the judge and what
his or her philosophy is. Our case assessment very heavily
relies on the judge that is going to be assigned.
As I mentioned in my testimony, if you want fairness in
America, go to arbitration because there is much more balance,
you are much more likely to get somebody who is balanced and
neutral in arbitration than you are going to court. So, yes, I
would say arbitration is a very viable alternative in that
regard, more predictable.
Dr. Boustany. Thank you. Do you think employers are duping
employees into waiving criminal law protections with regard
specifically to these binding arbitration agreements? I mean,
are you aware of any cases where employers are deliberately
trying to deceive employees with regard to waiving their----
Mr. de Bernardo. No, I am not aware, and, in fact, if there
were those cases, then I think, you think, there is a potential
cause of action for the individual, and if they have been
deceived by the employer into signing potentially a document
that they were lied to about, then, sure, I think there is a
cause of action that exists there.
Dr. Boustany. Thank you.
And with regard to H.R. 5129 and the issue of
retroactivity, is it your testimony that this bill would strike
down every employment agreement previously entered into under
employment law, and what about pending arbitrations, cases
already in process? What would happen to those cases?
Mr. de Bernardo. Yes, it is my opinion that what we have in
the United States are in excess of a million existing, valid,
and enforceable mandatory binding arbitration agreements in
employment that would be rendered null and void by this
sweeping action.
Some of those agreements have been in place for decades
with employees. Some are involving very senior executives. Some
are very enthusiastically embraced by the employees. You know,
there are many, many success stories on how this has been
successful, how it makes for better employers and improved
morale, and yet regardless of what the employee's intent,
desire, preference is, those agreements would be prohibited.
Dr. Boustany. Thank you.
Ms. Piscitelli, where would you draw the line on disparate
impact? Have you given some thought to that?
Ms. Piscitelli. Where would I draw the line----
Dr. Boustany. Yes.
Ms. Piscitelli [continuing]. Between what is not and what
is?
Dr. Boustany. Yes.
Ms. Piscitelli. Well----
Dr. Boustany. I mean, would not that be a difficult issue
and create a lot of confusion?
Ms. Piscitelli. Well, I would like to say one thing. I
think that the act already does prohibit disparate impact.
Section 4311(a) does not require intentional discrimination. It
specifically says that ``a person who is a member of, applies
to be a member of, performs, has performed, applies to perform,
or has an obligation to perform service in a uniformed service
shall not be denied initial employment, reemployment, retention
in employment, promotion, or any benefit of employment by an
employer on the basis of that membership, application for
membership, performance of service, application for service, or
obligation.''
There is nothing in that protection that specifically
prohibits intentional discrimination. It is broad enough to
include disparate impact. The problem arises with subsection C
of 4311 which says that ``an employer shall be considered to
have engaged in actions prohibited'' by the section that the
employees or the applicants, service or membership in the
service, or application for service is a motivating factor.
So I think that is already there.
I do not see why disparate impact would be more of a
problem under USERRA than the Americans with Disabilities Act.
The Americans with Disabilities Act includes on the prohibition
of discrimination on the basis of disability standards,
practices, policies that have a disparate impact on either one
person with a disability or a group of people.
So a class of one type of disparate impact model is already
found in one of our federal employment statutes.
Dr. Boustany. Mr. Wood, could you comment on that?
Mr. Wood. Yes, sir, Mr. Boustany. I would say that the
issue with the disparate impact claim is really with the claim
itself because it is not a well-received claim in the courts.
It is based on statistics. You have competing experts. You do
not have really witnesses coming in and testifying about what
happened or what did not happen.
You have an expert on each side that comes in and takes
this set of assumptions and this one takes this set of
assumptions, and if you change the assumptions slightly, the
statistics change drastically and, ultimately, you end up in a
situation where you are really not litigating over a case of
what happened to whom or what happened to one person or
another. You are litigating over statistics.
Dr. Boustany. Thank you.
I see my time has expired. Thank you, Mr. Chairman.
Chairman Andrews. I thank the gentleman.
The Chair recognizes the gentleman from Pennsylvania, Mr.
Sestak, for 5 minutes.
Mr. Sestak. Thanks, Mr. Chairman.
I just have two comments and maybe a question over here.
First, Sergeant, I joined up during the Vietnam War when
there was a draft, and I spent 35 or so years in the military.
I had never known until now that USERRA did not cover wages. I
just do not understand it. I have watched ever since Desert
Storm how indispensable our Reserve, Guard, et al., are.
Just for comment, I just cannot believe that those who wear
the cloth of our nation and come overseas to help the active
are not given the equal wage consideration.
Chairman, I was taken by your--again, I was a fire marshal
my first couple of years in the military, along with other
things, and I have always felt very strongly that, you know,
your service is not dissimilar to the sergeant's. What
distinguishes you is you share in your career what is
different, the dignity of danger.
Now here you are twice the citizen, as Winston Churchill
said, ready to go forward anywhere and help out, and all you
are asking for is 14 days to help society. Again, it just seems
to be a no-brainer to me.
But my question is over here. Now 30-some years defending
the right for people to have a trial, their day in court, I
lived in a system where we did not get arbitration when one of
my family members lost her taste because a military doctor went
through and perforated it down her stomach and then lost her
taste. We did not even get the right to arbitration, never mind
the right to court, in the military. I was always taken by
that.
So, when I sit back and I ask you what is your standard for
goodness here, I look at what you say, ADR gives us more
resolve, they resolve themselves sooner, they seem to give us
better workplaces. What is your real definition or standard
where you can kind of sit back and say, ``Yes, we had really
better outcomes,'' not just more efficiency?
Mr. de Bernardo. Well, yes, my point there, Congressman, is
that employers are better----
Mr. Sestak [continuing]. Answer to that is--the reason I
bring that up is how do we know if we have no transparency on
what the outcome is. I mean, the three branches of government
were set up so one was a check and a balance on someone else.
What is the check and the balance on the private company or the
arbitrator if you cannot see what the results are?
Mr. de Bernardo. Okay. There are a couple of questions
there. The check and the balance is something I mentioned
before, that you cannot waive your rights under Title VII. You
cannot waive it before a dispute, after a dispute. You still
have that option of going to----
Mr. Sestak. A civil right.
Mr. de Bernardo. Yes, your civil rights.
Mr. Sestak. But I was not talking on that.
Mr. de Bernardo. Okay. As far as, you know, this idea of
your day in court, I was trying to make that point earlier in
terms of access to justice. Arbitration provides a means for
access to justice that would be denied to the vast majority of
people who go into dispute resolution programs or ADR programs.
Those complaints simply would not be embraced.
The National Work Rights Institute has constantly said and
testified up here on the Hill. There is a threshold of about
$75,000 for plaintiffs' lawyers. They are not going to accept
cases typically unless they think that there is a recovery of
$75,000 or more. The majority of employment disputes--a clear
majority--an overwhelming majority--involve a dollar amount
less than that.
So what happens to those people? Where do they go if you do
not have an arbitration process?
In fact, one of the areas in which we practice, I
practice----
Mr. Sestak. Could you answer one of my questions about not
being able to see all the results? You know, the arbitration
clause says ``and the results are to be kept confidential.''
Mr. de Bernardo. And so the question is?
Mr. Sestak. And how do we assess whether this is a good
system that is working well and fairly?
Mr. de Bernardo. Well, one of the ways we assess it is the
way that I talked about in the testimony, both written and
verbal, which is what about those people who participated in
mandatory binding arbitration and, as I mentioned repeatedly,
overwhelmingly, they are supportive and they say that they will
do it again.
Mr. Sestak. My time is up.
I guess my take has always been, for a concluding comment,
is if a company does feel as though they are right, why do they
worry about going into court to defend the goodness of what
they have done?
And so I kind of sit back and am quite taken by you, Mr.
Foreman. It is the pre-dispute issue here for me, that you are
precluded from going forward. I have always looked at laws----
And if I could just have 30 more seconds, Mr. Chairman.
Chairman Andrews. Sure.
Mr. Sestak. I have always looked at laws as kind of keeping
the barbarians from the gate, and that is what courts, of
course, do, messy as it might be, and it just seems when I look
at Ms. Jones that it is pretty obvious that a private company
did not keep the barbarians from her, and it is a private
company that we are relying upon in arbitration really. It is
not an open system, a court of law.
Thank you.
Chairman Andrews. Thank you. The gentleman's time has
expired.
The Chair recognizes the gentleman from Illinois, Mr. Hare,
for 5 minutes.
Mr. Hare. Thank you, Mr. Chairman.
And thank you all for coming today.
Mr. Serricchio, my friend, Mr. Kline, was asking you a
question, and he had a lot of people that he was trying to get
answers from, I understand, but you were trying to answer, I
think, the second part of that question. I would like to, you
know, maybe use some of my time in 5 minutes, if you would not
mind, to respond to the second part that you did not get a
chance to.
Sergeant Serricchio. Thank you, sir. In regards to if
Prudential had paid me while I was activated, I was activated
first for 1 year and subsequently given a second year
activation. For the first year, Prudential did pay me. However,
I was required to agree that I would pay that back from
commissions earned when I was reinstated back into work.
So they paid me for the year, but, ultimately, I was going
to be required to pay that back, and, again, when I had come
back, there was nothing left to pay that remedy, sir.
Mr. Hare. Thank you. And I have to tell you I think what
happened to you was inexcusable. I mean, we are supposed to be
taking care of the people who fight to defend this country, and
then you come back, and you have that happen to you, and I just
want you to know I am very sorry that that happened to you, you
know.
And, Ms. Jones, let me just, you know, thank you for having
the courage to come today. And I know this has been asked
before, but I am having a really hard time trying to get my
mind to wrap around this. You signed this, right?
Mr. Jones. Yes.
Mr. Hare. But you really did not even know what you were
signing, I guess, at the time, right?
Mr. Jones. Well, it was an 18-page document, and it talked
about travel and all this stuff, so--yes.
Mr. Hare. Well, listen, I thank you for the courage to
come, you know, this afternoon and to share this.
Mr. Foreman, you state in your testimony that the Supreme
Court has ruled that mandatory arbitration agreements should
only alter the forum in which employment disputes are resolved,
and some other things, too, yet employees are not being told
when they sign these agreements that they waive their access to
rights through the courts.
How can we reestablish the intent of these agreements to
only alter the forum in which these disputes are settled? That
is like a three-part question for you with probably about 2
minutes to go here. And how can we ensure that the employees
that are not intimidated are given partial information to
convince them to sign away their rights?
I, again, just find that what happened, you know, to Ms.
Jones is just absolutely mindboggling, that we would actually
have contractors that would put people in that type of
situation.
Mr. Foreman. Thank you, Congressman.
On that point, I think the way the bill addresses this,
particularly with pre-dispute binding arbitration, solves a lot
of those issues because once you ban that, everyone is very
used to entering into arbitration agreements when it is
voluntary and knowing.
And to my colleague's point here, he keeps citing
statistics about how overwhelmingly popular these are, but they
are arbitration agreements where people actually had a dispute,
they knew what they were giving up, they were advised by
counsel, and they chose this forum. So, naturally, they are
happy with that.
Back to sort of just bridging that to the retroactivity
question, if our colleagues are correct that everyone loves
these, I would think that if it is retroactive, the vast
majority of the individuals would continue to operate under
these binding arbitration agreements because they have proven
to be effective in that sense.
Mr. Hare. Mr. de Bernardo, the survey that you have
referenced today, it sounds to me--this is by the National
Arbitration Forum--the evidence seems to be pretty one-sided
here. I would argue that the survey is probably flawed because
it is not scientifically conducted or reviewed. Lawyers
received an e-mail allowing them to fill out this survey so
that it was self-selecting and biased because it only shows the
point of view of the attorneys involved in arguing arbitration.
I wonder if you could maybe elaborate on this. In other
words, I think, with all due respect, sir, you are quoting a
survey that is statistically flawed. It is like polling people
that do not exist or giving them the answer to the question and
then they submit it.
Mr. de Bernardo. Yes, Mr. Hare. I quote the statistics. All
the statistics are out there. Overwhelmingly, the statistics
are in favor of ADR, as are overwhelmingly the constituencies
that are involved and/or the public in general, 83 percent. So,
you know, one of the reasons that we cite statistics is because
statistics are in our favor. The research is in our favor. The
research is----
Mr. Hare. Would it be possible, with all due respect, that
they are in your favor because the only people that are
answering this are the lawyers that received an e-mail asking
them their opinion?
Mr. de Bernardo. You know, it is an ABA survey, and the
American Bar Association conducts a survey, and 86 percent of
their lawyers come out with an opinion, I think that is pretty
conclusive.
Chairman Andrews. The gentleman's time has expired.
Mr. Hare. Thank you, Mr. Chair.
Chairman Andrews. Thank you very much.
The Chair recognizes the gentleman from Massachusetts, Mr.
Tierney, for 5 minutes.
Mr. Tierney. Thank you, Mr. Chairman.
I want to thank all the witnesses for their testimony
today.
I am concerned with this arbitration aspect only in the
sense, as Mr. Foreman indicates, that people do not get to make
a choice when it is the best time for them to make the choice,
at the time of dispute. It seems to me that, you know, there
are situations in the past where, you know, people that are at
that point in time have to know what is at risk. They have to
know.
And I think, you know, you can cite people saying that they
are in favor of arbitration. I wonder how many of those people,
because they were locked into arbitration ahead of time,
actually understood how their final recovery compared to what
they might have received had they been advised by an attorney
as to punitive damages that they cannot get in arbitration and
other things of that nature.
Mr. de Bernardo. You know, I am of the opinion--I said it
in the testimony. I am saying it verbally--mandatory binding
arbitration is decisively pro-employee. It is both pro-employee
and pro-employer.
Mr. Tierney. Mr. Foreman, I want to go to you because I
have a decisively different opinion of that, having practiced
for over 20 years and having been on the other side of this,
that most people when they come in have no idea what their
anticipated recovery is..
Mr. de Bernardo. But the statistics that I gave,
Representative, is those people who participated----
Mr. Tierney [continuing]. Going to get. I am going to
continue, and I will ask if I really want anything else on
this. But the fact of the matter is that they know what it is
they stand to risk--it is a whole different world than if they
go through the process--and at they end they get something. And
the statistics we see is they get about 20 percent of what they
might be able to receive if they had gone to court in a lot of
instances. That is serious business.
They do not get any discovery necessarily. The arbitrator
generally does not have subpoena power. The record is not
public, so it is very hard to go back and look and see where
the arbitrators involved in this case have come down on
previous cases like that. So I think there is a lot of
difficulty in that.
And, Mr. Foreman, I would like your opinion on that, if I
could.
Mr. Foreman. And the most recent statistics support exactly
what you are saying, and they are cited in our materials, that
right now the current statistic is, if you are a plaintiff in
an employment discrimination suit and you go to jury trial, you
have a win rate of about 36 percent, whereas, if you go to
arbitration, your win rate is about 21 percent.
Mr. Tierney. Has it been your experience, you know, that
the people sometimes go into arbitration if it is mandatory
ahead of time without any appreciation for what their recovery
might be had they gone through civil proceedings in court in
front of a jury?
Mr. Foreman. Exactly. And one of the issues is the point we
have made repeatedly that people just do not understand either
what they are giving up or when they are giving it up, and they
do not think they have any other choice in the matter.
Mr. Tierney. Are you familiar with any statistics as to the
number of incidents where it is mandatory arbitration that
required a venue to be at a place that is inconvenient to a
plaintiff in that case?
Mr. Foreman. There is a whole litany of issues, and the
cases repeatedly cover this, where you give up your right to a
choice of forum, location, and ability to subpoena witnesses.
Timeframes are significantly shortened. Again, that is a lot of
the issues that need to be dealt with, and when Congress spent
all this time passing these civil rights laws, my hope would be
that you want them enforced in a way that they were passed.
Mr. Tierney. Mr. Serricchio, if I could change gears for a
second, you indicated, in your answer to Mr. Kline's question,
that you had two years in the service active duty, but 1 year
is what you went in understanding you were going to have. But
you never had a chance to answer as to whether or not your
company compensated you for any portion of that while you were
active duty.
Sergeant Serricchio. For the first year, I was compensated.
I was required to pay that back once I returned to work. So I
was essentially given a loan. I would have to pay that back
once I returned to work through money earned through
commissions. When I returned to work, there was nothing to
apply that to. The book of business was gone.
Mr. Tierney. Mr. Wood, based on what you heard from Mr.
Serricchio's testimony on his case, do you think that he got a
fair result, that his employer treated him appropriately under
the law?
Mr. Wood. Congressman, I do not know that I can testify or
talk about what Mr. Serricchio's issue is.
Mr. Tierney. You do not think you can give an opinion based
on the facts that he presented from his side?
Mr. Wood. There are two sides on every story.
Mr. Tierney. Right, but now my question was not about two
sides. My question was: Based on the facts as he stated them,
if they were true, do you think that he got fair treatment
under the law?
Mr. Wood. Congressman, I think ultimately he got a loan of
$90,000 for a time period that could have been totally unpaid
under USERRA. His employer was not required to pay him anything
under USERRA. They could have told him to go for 2 years and
lived with nothing. He got a loan from his employer.
Having read the papers that have been submitted to the
court, I think he got a very fair deal, yes.
Mr. Tierney. So you think his employer complied with the
law?
Mr. Wood. Based upon what I have seen of the court papers,
yes, sir.
Mr. Tierney. Okay. Thank you.
I yield back, Mr. Chairman.
Chairman Andrews. Thank you very much.
The Chair recognizes the gentleman from Iowa, Mr. Loebsack,
for 5 minutes.
Mr. Loebsack. Thank you, Mr. Chair. At this time, I do not
have any questions, having just arrived, and I would like to
yield my 5 minutes, if I may, to Ms. Sanchez.
Ms. Sanchez. I would like to thank the gentleman for
yielding.
I am interested, Mr. Foreman, do you know what prompted the
rise in the use of mandatory--or what the initial purpose of
mandatory binding arbitration was? What context? Are you
familiar with that?
Mr. Foreman. Well, if you go back in, I think, the Federal
Arbitration Act was passed in 1925, and I think the purpose was
really to deal with commercial arbitration disputes between
businesses, but it has morphed into stealing rights away from
victims of employment discrimination.
Ms. Sanchez. I could not agree with you more. The initial
purpose of it was two sophisticated entities, two businesses,
could enter into these mandatory binding arbitration contracts
so that they could resolve disputes without going into the
legal system, and it was meant for people of basically equal
footing.
In your opinion, do you think that employers and employees
who are seeking employment are on equal footing when they sit
down to negotiate employment contracts?
Mr. Foreman. Absolutely not. I mean, unless you are walking
in to get the coaching job for the Washington Redskins, no.
Ms. Sanchez. Thank you.
And I am wondering if you are familiar with the repeat
player effect in mandatory binding arbitration?
Mr. Foreman. Yes, and the repeat player effect, again, is
in some of the data that we cited in our materials. It is that
employers tend to use the same arbitrators, and the more and
more those arbitrators win, the employees win less and the
amount they win is less.
Ms. Sanchez. And does that strike you as some kind of
inherent conflict of interest if you are using the same person
over and over again and--surprise, surprise--they seem to be
ruling in your favor in a disproportionate amount of time?
Mr. Foreman. Absolutely, and, I mean, it is the old adage,
you are not going to bite the hand that feeds you, and if you
keep coming back, you are not going to get further
arbitrations.
Ms. Sanchez. The issue we talked about a little bit of
waiving substantive rights includes things like limited ability
for discovery, limited ability for the plaintiff to subpoena
witnesses, no jury trial. And, interestingly enough, is it not
true that arbiters are not confined to follow the law when they
render their decisions?
Mr. Foreman. Well, I think it is something, Congresswoman,
that you mentioned earlier, is that the appeals rights from an
arbitration decision are extremely limited.
Ms. Sanchez. So, if an arbitrator, for example, wanted to
decide a case and decided, you know, ``I think I am just going
to flip a coin to determine who should win this case,'' in some
instances, is it not true, it would be very difficult to appeal
a decision of an arbitrator who basically flipped a coin to
decide a case?
Mr. Foreman. It is extremely hard to overturn an
arbitrator's decision as you move forward.
Ms. Sanchez. Thank you.
I think all of those things underscore some of the inherent
trouble that I have dealing with mandatory binding arbitration,
specifically when you are talking about oftentimes
unsophisticated parties who are asked to sign these without
really understanding or knowingly waiving all of these rights
that are built into our legal system, but, unfortunately, are
not explained to them at the time these contracts are entered
into.
I had an experience not too recently where I went to a
dentist because I had a crown come off of my tooth. I am a
lawyer by training, and I am reading the form that I am
supposed to fill out, and I had to agree to go to mandatory
binding arbitration if I felt that there was less a degree of
care in terms of dealing with the tooth problem. And when you
have that kind of pain, you are almost willing to sign anything
to get the dentist to see you, and I do not necessarily think
even as a sophisticated attorney that I was on a level playing
field with a doctor who is in a position of strength when you
enter into bargaining. And that is just another illustration of
some of these problems that I see.
Mr. Serricchio, I wanted to start by thanking you for your
service. I have an employee actually in my district office,
Patrick Rodriguez, who is an Iraqi veteran. He took a leave of
absence because he was sent to Iraq. I know his wife and family
very well, and I simply am stunned by Wachovia's attitude
towards your leave and their basically saying that, you know,
they are going to put you in a position where you are unable to
support your wife and child, specifically after you responded
to a call of duty on behalf of your country. And given your
experience with Wachovia, I am interested in knowing what would
you tell friends or colleagues who were considering joining the
Guards or Reserves after your experience?
Sergeant Serricchio. I would support joining the Guard and
Reserve. I followed in my brother's footsteps who still is in
active duty and over in Iraq now. That was my deciding factor.
I would not discourage people against joining the Guard and
Reserve.
With my situation, it came back to when I came back, out of
the military and reinstated back into work, where the area
became a problem, but as far as me suggesting people to join, I
think it is a great opportunity. I think that the----
Ms. Sanchez. Would you ask them to consider what might
happen to them when they come back after their service?
Sergeant Serricchio. Well, I can speak from experience from
people over in Saudi Arabia and people in Massachusetts that I
served with that it was a concern for everybody, you know,
being away for a year and then being away for a second year and
then some people on to a third year, what life would be like
after they returned. It is fearful for everybody, especially
when you do come back, and you find that nothing is waiting for
you.
But as far as suggesting anybody to join it, I think it is
a great opportunity. I would not deter anybody from joining.
Ms. Sanchez. Thank you, and I thank you for your service.
I thank the gentleman for yielding.
Chairman Andrews. The gentleman's time has expired.
We would like to thank this panel for very thoughtful,
comprehensive testimony. I think the committee will,
unfortunately, ask you to contribute more because, as we
continue our deliberations on these subjects, I know that each
of the contributions you have made will be valuable.
Thank you very, very much for your participation.
I am going to ask if the members of the second panel would
come forward, and in the interest of time, I am going to start
to read their biographies, and we will get started with their
testimony in just a moment.
Richard Foltin is the legislative director and counsel at
the American Jewish Committee, AJC. Mr. Foltin previously
served as the AJC's New York director of governmental affairs
and was counsel for that office. Mr. Foltin received his
bachelor's from New York University and his JD from the Harvard
Law School.
Michael Gray is a partner in the law firm of Jones Day,
focusing on representing corporate clients, including in
employment discrimination lawsuits. He earned his BA from the
University of Michigan in 1989 and his JD from Northwestern
University in 1992 where he was on the editorial board of the
Journal of International Law and Business.
Ms. Zainab Al-Suwaij is executive director of the American
Islamic Congress, AIC, an organization she co-founded after the
September 11 attacks.
Since then, Ms. Al-Suwaij has directed women's empowerment
programs in Southern Iraq, lectured at Harvard, and
participated in interfaith events around the world. She was
named an ambassador of peace by the Interreligious and
International Peace Council.
Ms. Al-Suwaij is the granddaughter of one of Basra's
leading clerics, and was one of the few women that joined the
failed 1991 intifada uprising against Saddam Hussein.
Welcome, and we are happy to have you with us.
Judy Goldstein is a speech therapist from New Jersey.
Good judgment, Ms. Goldstein. She is involved in volunteer
projects in her community, working with special needs children
to develop their speech and language skills.
James Standish is the director of Legislative Affairs,
Public Affairs, and the Religious Liberty Department for the
Seventh-Day Adventist Church. Mr. Standish is also deputy
secretary general for the U.S. legislative affairs for the
International Religious Liberty Association.
Mr. Standish received his bachelor's degree from Newbold
College in England, his MBA from the Darden Graduate School of
Business at the University of Virginia, and a JD from the
Georgetown University Law Center.
Finally, Helen Norton is an associate professor of law at
the University of Colorado Law School. Professor Norton has
taught at Colorado since 2007. Before entering academia,
Professor Norton served as deputy assistant attorney general
for civil rights at the U.S. Department of Justice. She earned
her BA from Stamford University in 1986 and her JD from the
University of California at Berkeley.
We have assembled a very distinguished panel for which we
are grateful.
I did want to note in advance that the primary author of
the bill we have under consideration, Representative McCarthy,
is with us, and a co-sponsor of that bill, Representative
Souder, a Republican member of the committee, was scheduled to
be with us, but has had flight problems because of weather.
And I have offered to both of our colleagues the chance to
make a statement. I think Ms. McCarthy has declined that
opportunity, as I understand it. She would rather hear from the
witnesses. And Mr. Souder would also be welcome, however, as
would Ms. McCarthy, to submit a written statement for the
record in recognition of their leadership on this issue.
So we will begin with Mr. Foltin. I think you were in the
audience and heard the ground rules a long time ago that your
written testimony will be accepted without objection into the
record.
We would ask you to summarize your written testimony in
about 5 minutes. When the yellow light appears, it means you
have a minute left to go. When the red light appears, we would
ask that you summarize your testimony.
We are delighted that each of you would come from far-flung
places to be with us today.
And, Mr. Foltin, we will start with you.
STATEMENT OF RICHARD FOLTIN, LEGISLATIVE DIRECTOR AND COUNSEL,
AMERICAN JEWISH COMMITTEE
Mr. Foltin. Mr. Chairman, Ranking Member Kline, members of
the subcommittee, thank you for this opportunity to testify on
the Workplace Religious Freedom Act, important bipartisan civil
rights and religious liberty legislation, introduced by
Representatives Carolyn McCarthy and Mark Souder, and we are
grateful for their championing of this issue.
My name is Richard Foltin. I serve as legislative director
and counsel for the American Jewish Committee, and I have the
privilege of serving also as co-chairman, together with my co-
panelist James Standish, of the coalition promoting passage of
the Workplace Religious Freedom Act, a broad coalition of over
40 religious and civil rights groups that span the political
and religious spectrum, reflecting the robust diversity of
American religious life.
With the permission of the Chair, I would like to offer for
the record a letter of support signed by a number of
organizations supporting passage of WRFA.
Chairman Andrews. Without objection.
[The information follows:]
Organizations Supporting the Workplace Religious Freedom Act
Agudath Israel of America Islamic Supreme Council of America
American Jewish Committee Jewish Council for Public Affairs
American Jewish Congress Jewish Policy Center
Americans for Democratic Action NA'AMAT USA
American Islamic Congress National Association of Evangelicals
American Values National Council of the Churches of
Anti-Defamation League Christ in the U.S.A.
Baptist Joint Committee on Public National Jewish Democratic Council
Affairs National Sikh Center
Bible Sabbath Association North American Council for
B'nai B'rith International Muslim Women
Center for Islamic Pluralism North American Religious
Central Conference of American Liberty Association
Rabbis Presbyterian Church (USA)
Christian Legal Society Rabbinical Council of America
Church of Scientology Religious Action Center of Reform
International Judaism
Concerned Women for America Republican Jewish Coalition
Council on Religious Freedom Sikh American Legal Defense
Family Research Council Education Fund
General Board of Church and Sikh Council on Religion and
Society, Education
the United Methodist Church Southern Baptist Convention, Ethics
General Conference of and Religious Liberty Commission
Seventh-day Adventists Traditional Values Coalition
Guru Gobind Singh Foundation Union of Orthodox Jewish
Hadassah--WZOA Congregations
Institute on Religion and Public Union for Reform Judaism
Policy United Church of Christ
Interfaith Alliance Office for Church in Society
International Association of United States Conference of
Jewish Lawyers and Jurists Catholic Bishops
International Commission on United Synagogue of Conservative
Freedom of Conscience Judaism
International Fellowship of
Christians and Jews
------
Mr. Foltin. As you know, current civil rights law defines
the refusal of an employer to reasonably accommodate an
employee's religious practice, unless such accommodation would
impose an undue hardship, as a form of religious
discrimination.
This standard has been so weakened by the fashion in which
it has been interpreted by the courts as to needlessly force
upon religiously observant employees a conflict between the
dictates of religious conscience and the requirements of the
workplace.
The good news, however, is that since the problems in this
area turn on judicial interpretation of legislation, rather
than constitutional doctrine, they are susceptible to
correction by the U.S. Congress, and that is what the Workplace
Religious Freedom Act is intended to do.
Instead of the not more than de minims standard established
by the Supreme Court in 1977, WRFA would define ``undue
hardship'' as an action requiring significant difficulty or
expense and would require that to be considered an undue
hardship, the course of accommodation must be quantified and
considered in relation to the size of the employer.
WRFA would also require that to qualify as a reasonable
accommodation, an arrangement must actually remove the
conflict. The accommodation might, of course, constitute an
undue hardship, but a toothless and confusing definition of
``reasonable accommodation'' should not be utilized to avoid
engaging in undue hardship analysis.
Finally, in order to address issues raised at an earlier
point by the business community, WRFA would add to existing
religious accommodation law with clarifying language a
provision that an employer need not provide a reasonable
accommodation if, as a result of the accommodation, the
employee will not be able to fulfill the essential functions of
the job.
As under the current interpretation of Title VII, WRFA does
not give employees a blank check to demand any accommodation in
the name of religion and receive it. Rather, it restores the
protection Congress intended for religious employees in
enacting the 1972 amendment by adjusting the applicable
balancing test in the fashion that still gives substantial
regard to the legitimate needs of business, even as it somewhat
levels the playing field for an employee in need of
accommodation.
The factors that WRFA sets forth for determining what is an
undue hardship are designed to make the determination context
specific so that a relatively small employer might well not
have to provide an accommodation, where a larger employer would
have to do. Moreover, as an amendment to Title VII, WRFA simply
does not apply to truly small employers with fewer than 15
employees.
Concerns have been raised that implementation of WRFA will
lead to material adverse impacts on third parties. Those
concerns have risen primarily in the context of two types of
situations, that an employee will cite religious beliefs as a
justification for harassing fellow employees perhaps on the
basis of their sexual orientation and as well that because an
employee asserts a religious concern about being involved in
reproductive health care services that third parties would be
denied essential services.
As an organization that has a proud history of vigorous
support for both reproductive rights and measures to protect
against discrimination on the basis of sexual orientation--and
there are a number of other such organizations in our
ideologically diverse coalition--the American Jewish Committee
would not be supporting WRFA if we thought that it would lead
to such baleful results.
Nothing in WRFA will alter the fact that courts are quick
to recognize that workplace harassment imposes significant
hardship on employers in various ways, and, similarly, nothing
in WRFA will change the balancing test that courts will have to
engage in to assure that an employee's religious objections to
particular duties does not result in a denial or, for instance,
an abortion, necessary pharmaceuticals, or police protection
for abortion clinics.
The courts clearly take impact on third parties very
seriously as an element to undue hardship and, again and again,
when these kinds of concerns arise, their analysis has not
turned on the de minims standard. Moreover, the assertion of
baleful results will flow from strengthening federal
protections against religious discrimination are also without
basis in the experience of prior efforts to enhance
antidiscrimination law. For instance, in the law enacted by New
York State in 2002 which strengthened its religious
accommodation provisions.
Chairman Andrews. Mr. Foltin, could we just ask you to
summarize?
Mr. Foltin. Sure.
In conclusion, conjectural concerns unbuttressed by
experience should not be allowed to override the very real need
to remedy the harm faced by religious employees every day.
Thank you.
[The statement of Mr. Foltin follows:]
Prepared Statement of Richard T. Foltin, Legislative Director and
Counsel, Office of Government and International Affairs, the American
Jewish Committee
Mr. Chairman, thank you for this opportunity to testify before the
House Education and Labor Subcommittee on Health, Employment, Labor and
Pensions on the Workplace Religious Freedom Act, important civil rights
legislation introduced as H.R.1431 by Representatives Carolyn McCarthy
and Mark Souder.
And thank you, as well, Representatives McCarthy and Souder, for
bringing this crucial religious liberty and antidiscrimination
legislation to the fore. Your bipartisan effort sends exactly the right
signal--that the effort to safeguard religious liberty and fight
against religious discrimination is one that should, and must, bring
together Americans from a broad range of political and religious
persuasions.
My name is Richard T. Foltin. I serve as Legislative Director and
Counsel in the Office of Government and International Affairs of the
American Jewish Committee. The American Jewish Committee was founded in
1906 with a mandate to protect the civil and religious rights of Jews.
Through the years, AJC has been a vigorous proponent of the free
exercise of religion, not only for Jews, but for people of all faiths.
I also have the privilege of serving as co-chairman--together with
James Standish, legislative director of the General Conference of
Seventh-day Adventists--of the Coalition for Religious Freedom in the
Workplace. This broad coalition of over forty religious and civil
rights groups--spanning the political spectrum and reflecting the
robust diversity of American religious life--has come together to
promote the passage of legislation to strengthen the religious
accommodation provisions of Title VII of the Civil Rights Act of 1964.
A list of the organizations comprising the coalition is appended to my
testimony.
Current civil rights law defines the refusal of an employer to
reasonably accommodate an employee's religious practice, unless such
accommodation would impose an undue hardship on the employer, as a form
of religious discrimination. But this standard has been interpreted by
the courts in a fashion that places little restraint on an employer's
ability to refuse to provide religious accommodation, needlessly
forcing upon religiously observant employees a conflict between the
dictates of religious conscience and the requirements of the workplace.
The Workplace Religious Freedom Act (WRFA) will promote the cause
of protection of the free exercise of religion just as have two other
bipartisan initiatives, the Religious Freedom Restoration Act (RFRA)
and the Religious Land Use and Institutionalized Persons Act (RLUIPA),
enacted into law in 1993 and 2000, respectively. WRFA is a similar
response to the failure of the Supreme Court, and of lower courts
following the high court's lead, to give due regard to the importance
of accommodation of religious practice in a heterogeneous society.
The Need for WRFA
Why is the Workplace Religious Freedom Act necessary? After all, in
1972 the U.S. Congress amended the Civil Rights Act of 1964 so as to
define as a form of religious discrimination the failure of an employer
to reasonably accommodate an employee's religious observance unless
such accommodation would impose an undue hardship on the employer's
business.\1\ In so doing, Congress properly recognized that the
arbitrary refusal of an employer to accommodate an employee's religious
practice is nothing more than a form of discrimination. Unfortunately,
this standard, set forth in section 701(j) of Title VII (42 U.S.C.
section 2000e(j)), although appropriate on its face, has been
interpreted by the Supreme Court and lower courts in a fashion that
makes it exceedingly difficult to enforce an employer's obligation to
provide religious accommodation.
The constricted reading of section 701(j) is no small matter. RFRA
and RLUIPA were enacted by Congress in order to extend important
protections to all Americans from undue government encroachment on
their religious liberties. But for many religiously observant Americans
the greatest peril to their ability to carry out their religious
faiths, on a day-to-day basis, may come in the workplace.
Of course, many employers recognize that both they and their
employees benefit when they mutually work together to find a fit
between the needs of the workplace and the religious obligations of the
employee. But it is not always so. In too many cases, employees who
want to do a good job are faced with employers who will not make
reasonable accommodation for observance of the Sabbath and other holy
days.\2\ Or employers who refuse to make a reasonable accommodation to
employees who must wear religiously-required garb, such as a yarmulke,
a turban or clothing that meets modesty requirements.\3\ And the issues
of holy day observance and religious garb, while accounting for a
substantial portion of religious accommodation cases, far from exhaust
the situations in which an employee is faced with an untenable choice
because of an employer's failure to provide a reasonable accommodation.
Based on figures released by the Equal Employment Opportunity
Commission, the number of claims of religious discrimination in the
workplace filed for the fiscal year ending on September 30, 2006, as
compared to the fiscal year ending on September 30, 1992, reflect a
startling increase of over 75 percent. During the same period, by
comparison, claims involving racial discrimination declined slightly.
Behind the filing of each claim is the story of an American forced
to choose between his or her livelihood and faith. Frequently, those
who put their faith first suffer catastrophic losses, including their
homes, their health insurance, their ability to help their children
through college, and, in some particularly sad situations, their
marriages. Where employers have no good reason for refusing to make
religious accommodation, Americans should not face such a harsh choice.
One of the contributing factors to this dramatic rise in claims is
the weakness of the accommodation provisions as currently written.
Under current law, there is little incentive for recalcitrant employers
to accommodate the religious beliefs of their employees. This does not
deter people of faith in the workplace from asserting their rights,
however, because many of them are unwilling to compromise their
conscience no matter what the legal ramifications might be.
But there are other factors behind the increase in religious
discrimination claims as well. These include the movement toward a
twenty-four-hours-a-day/seven-days-a-week economy, with consequent
conflict with religious demands for rest and worship on Saturdays,
Sundays, or holidays; our nation's increasing diversity, marked by a
broad spectrum of religious traditions, some of which may clash with
workplace parameters that do not take into account the religious
observances of immigrant communities; latent animosity toward some
religious traditions after the September 11 attacks, a phenomenon
evidenced by a particularly severe spike in religious claims after the
attacks, when Sikh and Muslim Americans faced greater hostility at
work; and a growing emphasis on material values at the expense of
spiritual ones, with some employers refusing to see any adjustment in
workplace requirements to allow for religious practices.
To be sure, beginning in the 1990s both the EEOC and the Justice
Department have evidenced a commendable increase in attention to
religious discrimination cases, including cases premised on an
employer's failure to provide an appropriate accommodation of religious
practice. But the government's ability to bring those cases
successfully is necessarily limited by the strength of the underlying
law. And the claims brought at the federal level are but the tip of the
iceberg. Many such claims go through local or state processes instead.
And we will never know of the many people who do not bring claims
having been advised, whether by an enforcement agency or by private
counsel, that the present law leaves them with no--or a vanishingly
small chance of--recourse * * * and, therefore, to the choice of
violating a religious precept or giving up a source of livelihood.
Hardison and Its Progeny
The seminal Supreme Court case in this area is Trans World Airlines
v. Hardison, 432 U.S. 63 (1977). Larry Hardison was a member of a
seventh-day denomination, the Worldwide Church of God, who was
discharged by Trans World Airlines because he refused to work on
Saturdays in his position as a clerk at an airline-maintenance facility
that required staffing 24 hours per day, 365 days per year. The U.S.
Court of Appeals for the Eighth Circuit ruled that TWA had not provided
an adequate religious accommodation. TWA, joined by the employees'
collective-bargaining representative, filed an appeal with the Supreme
Court contending ``that adequate steps had been taken to accommodate
Hardison's religious observances and that to construe the statute to
require further efforts at accommodation would create an establishment
of religion contrary to the First Amendment of the Constitution.'' The
Court did not reach the constitutional question; it determined,
instead--in a 7-2 decision--that anything more than a de minimis cost
to an employer would be an ``undue hardship'' for purposes of section
701(j), and found that the proposed accommodations would have imposed
such a cost. The Court also found that TWA had made reasonable efforts
at accommodation.
Hardison had proposed several proposed accommodations to his
employer, two of which were found by the Court of Appeals for the
Eighth Circuit to be reasonable: ``TWA would suffer no undue hardship
if it were required to replace Hardison either with supervisory
personnel or with qualified personnel from other departments.
Alternatively, * * * TWA could have replaced Hardison on his Saturday
shift with other available employees through the payment of premium
wages.'' But the high court rejected ``[b]oth of these alternatives
[because they] would involve costs to TWA, either in the form of lost
efficiency in other jobs or higher wages. To require more than a de
minimis cost in order to give Hardison Saturdays off is an undue
hardship.'' 432 U.S. at 84.
Although Justice Marshall's dissent in Hardison, joined by Justice
William Brennan, argues that Trans World Airlines had not satisfied its
obligation to reasonably accommodate even under the ``more than a de
minimis cost'' definition of ``undue hardship,'' its more crucial point
is that the Court's reading of section 701(j) reflects a determination
by the Court that the Congress, in providing in the Civil Rights Act
that an employer must make reasonable accommodation for religious
practice, did ``not really mean what it [said].'' 432 U.S. at 86, 87.
Justice Marshall went on to state:
An employer, the Court concludes, need not grant even the most
minor special privilege to religious observers to enable them to follow
their faith. As a question of social policy, this result is deeply
troubling, for a society that truly values religious pluralism cannot
compel adherents of minority religions to make the cruel choice of
surrendering their religion or their job. And as a matter of law
today's result is intolerable, for the Court adopts the very position
that Congress expressly rejected in 1972, as if we were free to
disregard congressional choices that a majority of this Court thinks
unwise. 432 U.S. at 87. In other words, the Court's reading of section
701(j), in particular the de minimis interpretation of ``undue
burden,'' so vitiates the obligation to reasonably accommodate as to
result in ``effectively nullifying it.'' 432 U.S. at 89.\4\
The history of religious accommodation litigation since 1977 bears
out this vision. It would be an overstatement to say that employees
seeking a reasonable accommodation of their religious practices never
prevail in court, to say nothing of the many whose cases we never hear
about because they and their employers work out an accommodation
amicably. But a brief overview demonstrates that for the most part, to
borrow the title of one law review article on the subject, ``heaven can
wait.''
Thus, one might expect a ``reasonable accommodation'' to be one
that actually removes the conflict with religious practice, with
employers then required to show an ``undue hardship'' before being
relieved of the obligation to provide such an accommodation. To be
sure, courts have in some instances interpreted the requirement of
reasonable accommodation to mean just that. See Cosme v. Henderson, 287
F.3d 152, 159 (2d Cir. 2002); Wright v. Runyon, 2 F.3d 214, 217 (7th
Cir. 1993), cert. denied, 510 U.S. 1121 (1994). Nevertheless, there
have also been disturbing cases in which courts have suggested that an
accommodation of religious practice may be considered ``reasonable''
even where it would force an employee to compromise his or her
religious beliefs or face termination. Thus, courts have held that
employees' rights under collective bargaining agreements or other
``neutral'' shift-allocation procedures are, in of themselves,
reasonable accommodations even when those agreements make absolutely no
provision for employee religious practices that may come into conflict
with the requirements of the workplace. See Mann v. Frank, 7 F.3d 1365
(8th Cir. 1993); Cook v. Chrysler Corp., 981 F.2d 336 (8th Cir. 1992),
cert. denied, 508 U.S. 973 (1993). Just last month, the Eighth Circuit
reaffirmed this troubling principle, holding in Sturgill v. UPS, 2008
W.L. 123945 (Jan. 15, 2008), that even absent ``undue hardship'' an
employer does not have an obligation to offer an accommodation that
resolves an employee's religious conflict.
But it is in the application of the Hardison Court's interpretation
of ``undue hardship'' that religiously observant employees have most
often come to grief. The absence of nontrivial economic cost to
employers has not prevented the courts from finding, on the basis of
quite dubious rationales, that the provision of a reasonable
accommodation will amount to an undue hardship. In one case, Mohan
Singh--a Sikh forbidden by his religious precepts from shaving his
facial hair except in medical emergencies--applied for the position of
manager at a restaurant where he was already employed, but he was
denied the position because he would not shave off his beard. When the
Equal Employment Opportunity Commission brought a religious
discrimination claim on Mr. Singh's behalf, a federal district court
ruled that ``relaxation'' of the restaurant's grooming standards would
adversely affect the restaurant's efforts to project a ``clean-cut''
image and would make it more difficult for the restaurant to require
that other employees adhere to its facial hair policy. EEOC v. Sambo's
of Georgia, 530 F. Supp. 86 (N.D.Ga. 1981).
Twenty-five years later, another federal district court, this time
sitting in Massachusetts, ruled that it would be an undue hardship to
require the Jiffy Lube automobile lubrication service to allow a
Rastafarian who did not shave or cut his hair for religious reasons to
work where he was visible to the public, compelling him to either work
only in an underground ``lower bay'' or lose his job. Brown v. F.L.
Roberts & Co, Inc., 419 F.Supp.2d 7 (D. Mass. 2006). Jiffy Lube had
instituted a new policy that all employees making contact with the
public should be well-groomed in order to promote the company's desired
public image. The district court's opinion reflected an apparent
discomfort with the decision even as it asserted that ``it is compelled
by controlling authority.'' The court commented:
[I]t is a matter of concern when the balance appears to tip too
strongly in favor of an employer's preferences, or perhaps prejudices.
An excessive protection of an employer's ``image'' predilection
encourages an unfortunately (and unrealistically) homogeneous view of
our richly varied nation. Worse, it places persons whose work habits
and commitment to their employers may be exemplary in the position of
having to choose between a job and a deeply held religious practice.
419 F.Supp.2d at 19.
Hardison also held that the existence of seniority provisions in a
collective bargaining agreement serves as a basis to find undue
hardship in the granting of an accommodation because, for instance, to
allow the employee his Sabbath off would be in derogation of the
seniority rights of another employee. The deference to seniority rights
is unremarkable in light of Section 703(h) of Title VII (42 U.S.C.
section 2000e-2(h)), which makes clear that ``the routine application
of a bona fide seniority system [i.e., without intention to
discriminate because of race, color, religion, sex, or national origin]
would not be unlawful under Title VII.'' Teamsters v. United States,
431 U.S. 324 (1977). But, all too often, the conclusion is reached that
Section 703(h) bars an accommodation without further inquiry as to
whether the bargaining representative might have been enlisted in a
search for voluntary swaps or whether an exemption might be sought to
provisions of the collective bargaining agreement that seem to stand in
the way of an amicable arrangement (i.e., an arrangement that does not
require a senior employee to give up his or her right not to work on a
particular day).
The Supreme Court's lead in restrictively reading section 701(j)
has been reflected in lower court rulings on other aspects of how that
provision is to be applied. In Brener v. Diagnostic Center Hospital,
671 F.2d 141 (5th Cir. 1982), Marvin Brener, a hospital staff
pharmacist and Orthodox Jew, asked his supervisor to arrange his shift
so that he would not have to work on Saturday, his Sabbath, or on
Jewish holidays, such as Rosh Hashanah and Yom Kippur. Though granting
the request at first, the hospital eventually refused, arguing that
accommodation of Mr. Brener's religious practice posed a ``morale
problem'' because other pharmacists were complaining about this
``preferential treatment.'' Brener--scheduled to work on a day that his
faith forbade him to--was forced to resign. He sued, but lost. In its
ruling, a federal court of appeals held that it is the employee's,
rather than the employer's, duty to arrange job swaps with other
employees to avoid conflict with religious observance.\5\ But an
employer's inquiry is far more likely to be given serious consideration
by fellow workers. Further, the employer is better situated to know
which of the other employees is likely to be receptive to a request to
adjust schedules. Conversely, once the employer appears indifferent to
the request for accommodation, other employees may be less likely to
cooperate. In short, placing the onus for arranging job swaps on an
employee works to insulate an employer from fulfilling its obligation
to avoid discrimination, while placing a discouraging--even
debilitating--burden on the employee.
Finally, in Ansonia Board of Education v. Philbrook, 479 U.S. 60
(1986)--the only case besides Hardison in which the Supreme Court has
addressed the religious accommodation provisions of Title VII--the High
Court found that ``any reasonable accommodation by the employer is
sufficient to meet the obligation to accommodate'' and that the
employer could refuse alternatives that were less onerous to the
employee, but still reasonable. But even as this holding affords the
employer the discretion to choose the reasonable accommodation most
appropriate from its perspective, two principles should apply--first,
the accommodation should actually remove the conflict (which was the
case in Philbrook but not, as has been noted above, in other cases),
and, second, an accommodation should not treat a religious practice
less favorably than other, secular practices that are accommodated.
The Workplace Religious Freedom Act
The constrictive readings of section 701(j) discussed above are
inconsistent with the principle that religious discrimination should be
treated fully as seriously as any other form of discrimination. The
civil rights of religious minorities should be protected by
interpreting the religious accommodation provision of Title VII in a
fashion consistent with other protections against discrimination to be
found elsewhere in this nation's civil-rights laws. Since the problems
in this area turn on judicial interpretation of legislation, rather
than constitutional doctrine, they are susceptible to correction by the
U.S. Congress. That is what the Workplace Religious Freedom Act is
intended to do.
Instead of the ``not more than de minimis'' standard, WRFA would
define ``undue hardship'' as an ``an action requiring ``significant
difficulty or expense'' and would require that, to be considered an
undue hardship, the cost of accommodation must be quantified and
considered in relation to the size of the employer. In this respect, it
would resemble (although not be identical with) the definition of
``undue hardship'' set forth in the Americans with Disabilities Act.
The ADA presents, in fact, an apt analogy to the provisions of Section
701(j). As it later did for Americans with disabilities, the U.S.
Congress determined in enacting Section 701(j) that the special
situation of religiously observant employees requires accommodation so
that those employees would not be deprived of equal employment
opportunities.
Crucially, WRFA would require that to qualify as a reasonable
accommodation an arrangement must actually remove the conflict. This
would put to rest the notion that a collective bargaining agreement or
any other neutral arrangement, or an ``attempt to accommodate,'' that
fails to accommodate a religious practice might itself be viewed as a
``reasonable accommodation.'' The accommodation might, of course,
constitute an undue hardship, but a vitiated definition of reasonable
accommodation should not be utilized to avoid engaging in undue
hardship analysis.
WRFA would also make clear that the employer has an affirmative and
ongoing obligation to reasonably accommodate an employee's religious
practice and observance. This provision does not in of itself alter the
standard for what is a reasonable accommodation or an undue hardship.
It does, however, require that all to whom section 701(j) applies bear
the responsibility to make actual, palpable efforts to arrive at an
accommodation.
On the specific issue of collective bargaining arrangements,
nothing in the bill purports to override section 703(h) of Title VII.
It would, however, encourage religiously observant employees and their
employers, and a collective bargaining representative where applicable,
to seek amicable arrangements within the context of an existing
seniority system, perhaps through voluntary shift swaps or
modifications of work hours.
WRFA also explicitly puts to rest any suggestion in the Philbrook
case that it is appropriate to forbid the use of personal leave time
for religious purposes when that leave is available for other, secular
purposes.
Finally, in order to address concerns raised by business interests,
WRFA--tracking an element of the Americans with Disabilities Act--would
add to existing religious accommodation law, with certain clarifying
language, a provision that an employer need not provide a reasonable
accommodation if, as a result of the accommodation, the employee will
not be able to fulfill the ``essential functions'' of the job. Once it
is shown that an employee cannot fulfill these functions, the employer
is under no obligation to show that he or she would incur an undue
hardship were a reasonable accommodation to be afforded.
Concerns about Impact on Business
As was just referenced, concerns have been raised that WRFA will
impose an unmanageable burden on employers. But the concept of
religious accommodation is not, as we have seen, a new one under
federal civil rights law. And, as under the current interpretation of
Title VII, WRFA does not give employees a ``blank check'' to demand any
accommodation in the name of religion and receive it. Rather, it
restores the protection Congress intended for religious employees in
enacting the 1972 amendment by adjusting the applicable balancing test
in a fashion that still gives substantial regard to the legitimate
needs of business standard even as it somewhat levels the field for an
employee in need of accommodation.
In this regard, it is well to note that, as an amendment to Title
VII and therefore subject to its restrictions, WRFA does not apply to
employers of less than 15 full time employees. Moreover, the factors
that it sets forth for determining what is an ``undue hardship'' are
designed to make the determination context specific so that a
relatively small employer--of, say, 100 employees, might well not have
to provide an accommodation where a larger employer of 1,000 would have
to do so.
It is commonly argued that fakers will seek illegitimate
accommodations based on fraudulent beliefs. But the fact is that courts
have for decades engaged in assessing the sincerity of asserted
religious beliefs. Indeed, under the Supreme Court's 1965 decision in
United States v. Seeger, 380 U.S. 163 (1965), the threshold question of
sincerity as to religious belief must be resolved as a question of
fact. In practical terms, the problem of insincerity in the realm of
religious accommodation in the workplace is particularly small. People
who do not have a genuine and sincere reason to ask for an
accommodation are simply unlikely to risk employer displeasure and
social stigma by doing so. In addition, religious accommodation cases
are almost always brought after a worker has been fired. Given the
economic disincentive to bring such suits, it would be odd indeed for
an individual to be fired and then spend financial resources to
vindicate a religious belief she doesn't sincerely hold.
Historical precedent indicates that bogus claims are much more
prominent in the minds of WRFA opponents than in reality. New York
State has had a holy-day accommodation law for many years, yet there is
no record of people bringing cases for failure to honor their ``Church
of the Super Bowl'' or ``Mosque of the Long Weekend.'' For that matter,
there has been no epidemic of these fanciful claims under existing
federal religious accommodation law.
Concerns about Impact on Third Parties
Another set of concerns has been raised that implementation of WRFA
will lead to material adverse impacts on third parties. These concerns
arise primarily in the context of two types of hypothetical
situations--that WRFA will be used to protect those who would cite
religious beliefs as a justification for harassing gays in the
workplace, and that WRFA will be used to limit access to reproductive
healthcare. These concerns are based on an unreasonable and untenable
reading of the proposed law under which claims for accommodations that
would have material adverse impact on third parties that have, until
now, lost virtually without exception, might have different results
should WRFA be passed. As an organization that supports both
reproductive rights and measures to protect against discrimination on
the basis of sexual orientation, the American Jewish Committee would
not be supporting WRFA if we thought that it would lead to such baleful
results.
A central component of WRFA, as is the case under current
accommodation law, is its balancing test, albeit with a modification of
the operative definitions of ``reasonable accommodation'' and ``undue
hardship.'' Nothing in that change in definition will alter the fact
that courts are quick to recognize that workplace harassment imposes a
significant hardship on employers in various ways: Permitting
harassment to proceed unchecked opens the employer up to lawsuits based
on the employer maintaining a hostile work environment; the loss of
productivity and collegiality caused by attacks on colleagues
constitutes a significant burden; and the cost of recruiting and hiring
new employees to replace those who leave due to harassment also meets
the significant burden test.
Thus, in Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012 (4th Cir.
1996), cert. denied, 522 U.S. 813 (1997), an appellate court dismissed
the religious accommodation claim brought by an employer who was fired
for writing accusatory letters to co-employees. The court reasoned,
``where an employee contends that she has a religious need to impose
personally and directly on fellow employees, invading their privacy and
criticizing their personal lives, the employer is placed between a rock
and a hard place. If [the employer] had the power to authorize [the
plaintiff] to write the letters, the company would subject itself to
possible suits from [other employees] claiming that [the plaintiff's]
conduct violated their religious freedoms or constituted religious
harassment.'' The court considered the proposition that the plaintiff's
conduct constituted an undue hardship to be self-evident, and did not
find it necessary to analyze the claim in terms of the de minimis
standard.
Similarly, in Peterson v. Hewlett-Packard, 358 F.3d 599 (9th Cir.
2004), a court of appeals unequivocally decided that Title VII provided
no protection from termination for a Christian employee who was fired
when he refuse to remove from his cubicle a quote from the Bible
condemning homosexuality. Both the lower court and the appeals court
had no problem at all finding against the plaintiff on the Title VII
claim he brought for failure to provide a religious accommodation. The
Ninth Circuit did not discuss the standard the employer had to meet,
but rather focused on the burden on fellow employees, finding, in
effect, that religious beliefs cannot insulate actions that demean or
degrade other employees. There is nothing in WRFA that would change
this analysis. Moreover, it is significant that there is a paucity of
Title VII religious accommodation case involving the issue of
harassment of gays in the workplace.
Concerns have also been raised that WRFA would permit an emergency-
room nurse to walk away from a woman in need of an emergency abortion
on the grounds that the nurse's participation in the procedure would
violate his or her religious precepts--as if any court hearing a case
brought by the nurse against an employer for unfair dismissal would
likely find that it is not a significant burden on the hospital when
its employees refuse to treat patients in need of emergent care. If
employees leaving patients suffering isn't a significant burden on a
hospital, one is forced to ask, what is? If facing significant
malpractice liability from the patient for substandard care isn't a
significant burden, what is? If risking the hospital's accreditation
isn't a significant burden, what would be? \6\
The same analysis plays out in the context of the claim that WRFA
would permit policemen to refuse to guard abortion clinics. If a
policeman had a religious objection to guarding an abortion clinic, he
could, under WRFA, ask to be reassigned. His employer would be required
to facilitate such a reassignment, but only if by so doing it did not
incur a significant burden. Sometimes accommodation would simply not be
practicable. Does this mean that the abortion clinic would remain
unguarded? No. In such circumstances the policeman would have to accept
his assignment or accept the consequences of disobeying an order.
Nothing in WRFA comes close to leaving abortion clinics exposed.
And, finally, it is claimed that WRFA would somehow empower
pharmaceutical employees to refuse to fill prescriptions for birth
control medication or for emergency contraception, even at the cost of
the patient's prescription not being filled at all. This concern was
raised in the context of a case in which a CVS pharmaceutical employee
refused to fill a prescription for birth control pills because the
pharmacist did not ``believe'' in birth control. After some initial
confusion, CVS confirmed that the refusal was not in line with company
policy, which requires that a pharmacist who refuses to dispense
medication based on personal ideology must make sure that the patient's
prescription is filled anyway, either by another pharmacist at that
location or by another pharmacy in the area. In a similar vein, an
Eckerd pharmacy fired a pharmacist who refused to fill a rape victim's
prescription for emergency contraception.
As with existing Title VII provisions, WRFA provides a floor in
terms of the extent to which an employer must accommodate an employee's
religious practice, not a ceiling. Thus, WRFA has no role to play as to
whether a pharmacy will require--as CVS and Eckerd do--that
prescriptions be filled, regardless of an employee's personal beliefs.
But, crucially, as in the context of abortion services, once a pharmacy
does have such a policy, a fair reading of the ``undue hardship''
standard under WRFA would lead to the conclusion that the firing of an
employee for not filling the prescription would be sustained if no
reasonable accommodation such as having another employee fill the
prescription in a timely fashion were available. Given the implications
for the pharmacy of having a customer whose prescription is not filled,
the failure to fill the prescription would constitute a palpable
significant difficulty or expense.
In sum, the courts clearly take impact on third parties very
seriously as an element of undue hardship and, again and again, their
analysis does not turn on the de minimis standard. Indeed, the cases
cited by opponents of WRFA often turn on aspects that have nothing to
do with the ``undue hardship'' standard at all.\7\
Moreover, the assertion that baleful results will flow from
strengthening federal protections against religious discrimination are
also without basis in the experience of prior efforts to enhance
antidiscrimination law. In 2002, New York State amended the religious
accommodation provisions of its Human Rights Law, found at New York
Executive Law Section 296(10), in a fashion similar in material
respects to WRFA.\8\ Earlier, in 1997, President Bill Clinton adopted
guidelines on the treatment of religion in the federal workplace that
functionally strengthened the religious accommodation standards of that
workplace.
In a state as large and diverse as New York, and given the speed
with which information travels in this Age of the Internet, we would
expect to have heard if the predicted onslaught of such claims were
occurring, much less that these claims were prevailing. But there is no
evidence that enactment of the 2002 amendments has led to the parade of
horribles foretold by some critics of WRFA. As Eliot Spitzer, now
Governor and then Attorney General of New York, stated in an op-ed
appearing in the Forward on June 25, 2004, ``New York's law has not
resulted in the infringement of the rights of others, or in the
additional litigation that the ACLU [a WRFA critic] predicts will occur
if WRFA is enacted. Nor has it been burdensome on business. Rather, it
strikes the correct balance between accommodating individual liberty
and the needs of businesses and the delivery of services. So does
WRFA.''
Thus, the suggestion that Congress should not pass WRFA because it
will open the door to harassment and denial of essential medical
treatment places a fanciful swatting at phantoms over the very real
need to remedy the harm faced by religiously observant employees every
day.
Why the ``Targeted'' Approach Will Not Work
It has been suggested that the way to deal with these concerns is
to resort to a so-called ``targeted'' approach, under which Congress
would single out particular religious practices--dress, grooming, holy
days--for protection under the WRFA standard. But the ``targeted''
approach embraces a troubling notion--that certain religious practices
are simply not worthy of even a day in court to establish whether
accommodation of those practices can be afforded without significant
difficulty or expense for the employer or third parties. Again, the
AJC--joined by many of the organizations supporting WRFA--is committed
to combating discrimination on the basis of sexual orientation and to
reproductive rights. But we are also committed to a fundamental premise
of our Constitution and our society, that it is not up to the
government to prescribe orthodoxies of belief or practice, and that the
religious beliefs and practices of those with whom we disagree on these
(and other) fundamental matters should be accommodated if this can be
done without harm to others.
Moreover, under the ``targeted'' approach as many as 25% of
accommodation claims would be consigned by a Faustian bargain to the
old, inadequate standard--all in order to ensure that a subset of those
claims with little chance of success are eliminated from a miniscule
improved chance of success.
Claims that would be eliminated from coverage a targeted
application of the WRFA standard include:
Jehovah's Witness employees who request to opt out of
raising the flag and pledging allegiance at work;
A Methodist attorney who requests accommodation not to
work on tobacco litigation;
A Quaker (Society of Friends) employee who requests to be
transferred to a division that does not work on armaments;
An Orthodox Jewish woman who requests permission not to
shake the hands of male customers;
A Hindu employee who requests permission not to greet
guests with the phrase ``Merry Christmas;''
A Christian employee who requests to be assigned to work
that does not involve embryonic research;
A Muslim hospital employee who requests to be exempted
from duty in which she would be present when a member of the opposite
sex is unclothed.
While these examples provide an overview of some of the types of
cases that would be omitted from coverage by WRFA were the targeted
approach adopted, it is by no means designed to give the totality of
cases. Indeed, the variety of religious beliefs is one of the factors
that make our nation such a fascinating place to live. In addition,
there are numerous relatively new religious groups in the United
States. Many of these groups are relatively small and some are
primarily made up of immigrants. As a result, they often are unaware of
their rights under current law, and frequently do not have the
resources to vindicate their rights in the courts. Thus, the reported
cases almost certainly undercount the claims from these groups. To
agree to a targeted bill is to agree to a lower protection for these
groups without their having any input in the decision.\9\
WRFA provides that when it can be shown that accommodating a person
of faith in the workplace proves significantly difficult or expensive,
the accommodation need not be provided. Whether that difficulty arises
due to disharmony caused by a religious employee harassing another
employee or refusing to provide medical care when no reasonable
accommodation can be made, or because accommodation of the religious
employee would result in disfavoring fellow employees or other third
parties in a host of other ways, the balancing test provides assurance
that religious employees will not trample the rights of others in the
workplace.
Constitutional Issues
Amendment of the law so as to provide a reading of Section 701(j)
that affords meaningful protections for religiously observant employees
is consistent with the Establishment Clause's requirement that
government action not favor one religion over another, or religion over
non-religion.
It has been suggested by some commentators that the reading of
``undue hardship'' to mean not more than de minimis difficulty or
expense was necessary to avoid a reading of the accommodation provision
that would have caused it to run afoul of the Establishment Clause.
Although not explicitly invoking the Establishment Clause, Justice
White--writing for the Court in Hardison--asserted that any
construction of Title VII that was more protective of religious
practice would mean that employees would be treated not on a
nondiscriminatory basis but unequally on the basis of their religion.
``* * * [T]he privilege of having Saturdays off would be allocated
according to religious belief,'' he said in writing for the Court,
``Title VII does not contemplate such unequal treatment.''
But Justice Marshall's dissent in Hardison, joined by Justice
Brennan, saw no constitutional problem in requiring employers ``to
grant privileges to religious observers as part of the accommodation
process.'' Justice Marshall went on, ``If the State does not establish
religion over nonreligion by excusing religious practitioners from
obligations owed the State, I do not see how the State can be said to
establish religion by requiring employers to do the same with respect
to obligations owed the employer.'' 432 U.S. at 91. He added in a
footnote:
The purpose and primary effect of requiring such exemptions is the
wholly secular one of securing equal economic opportunity to members of
minority religions. * * * And the mere fact that the law sometimes
requires special treatment of religious practitioners does not present
the dangers of ``sponsorship, financial support, and active involvement
of the sovereign in religious activity,'' against which the
Establishment Clause is principally aimed. 432 U.S. at 90-91, fn. 4. As
we all know, Justices Marshall and Brennan were both resolute
supporters of a strict reading of the Establishment Clause. Thus, it is
particularly compelling that neither believed that the Constitution
required a weak reading of section 701(j).
The case of Estate of Thornton v. Caldor, Inc., 472 U.S. 703
(1985), is distinguishable. In that case the Supreme Court struck down
by a vote of 8-1, as a violation of the Establishment Clause, a
Connecticut statute that gave employees the absolute right not to work
on their respective Sabbaths. Writing for the Court, Chief Justice
Burger said the state law imposed an excessive burden on employers, as
well as on non-religious employees who also had ``strong and
legitimate'' reasons for wanting to avoid having to work on the
weekend. 472 U.S. at 710, fn.9. The opinion of the Chief Justice did
not, however, address the question of the constitutionality of a less
absolute approach to the issue of employee Sabbath observance.
In a concurring opinion, joined by Justice Marshall, Justice
O'Connor agreed with the Court's decision, but stated also that ``the
Connecticut Sabbath law has an impermissible effect because it conveys
a message of endorsement of Sabbath observance.'' She went on to note
that ``the statute singles out Sabbath observers for special and, as
the Court concludes, absolute protection without according similar
accommodation to ethical and religious beliefs and practices of other
private employees.'' 472 U.S. at 711 (O'Connor, J., concurring). Hence,
in her view, the statute advanced religion in violation of the
Establishment Clause. Importantly, Justice O'Connor distinguished the
Connecticut statute from the religious accommodation provision of Title
VII:
* * * a statute outlawing employment discrimination based on race,
color, religion, sex, or national origin has the valid secular purpose
of assuring employment opportunity to all groups in our pluralistic
society. * * * Since Title VII calls for reasonable rather than
absolute accommodation and extends that requirement to all religious
beliefs and practices rather than protecting only * * * Sabbath
observance, I believe that an objective observer would perceive it as
an anti-discrimination law rather than an endorsement of religion or a
particular religious practice. 472 U.S. at 712.
Both prior to and subsequent to Thornton, a number of federal
appellate courts have held the reasonable accommodation provisions of
section 701(j) to be constitutional, reasoning that, under the
tripartite analysis of Lemon v. Kurtzman, 403 U.S. 602 (1971), the
requirement had a secular purpose (the elimination of religious
workplace discrimination); a primary effect that neither advances nor
prohibits religion; and does not lead to excessive government
entanglement with religion. See, e.g., EEOC v. Ithaca Industries, Inc.,
849 F. 2d 116 (4th Cir.), cert. denied, 488 U.S. 924 (1988); McDaniel
v. Essex International, Inc., 696 F.2d 34 (6th Cir. 1982).
Left unaddressed by the courts, except for the views expressed by
Justices Marshall and Brennan in their dissent in Hardison, is whether
a standard more protective of religious observance than de minimis but
not absolute, as was the Connecticut statute struck down in Thornton,
would survive Establishment Clause scrutiny. In our view, it would.
Turning to the Lemon analysis,\10\ easing of the undue hardship
standard (and, indeed, the other aspects of the bill), so as to afford
greater protection for employees serves the secular purpose of
combating discrimination. Moreover, the parallels between WRFA and the
Americans with Disabilities Act--albeit their provisions are not
identical--demonstrate that the Congress will not be granting a
religion a kind of protection not available to secular interests. The
primary effect prong appears satisfied by the balancing of interests
and non-absolute nature of the accommodation reflected in the bill.
Finally, the excessive entanglement prong--subsumed in the primary
effects prong by Agostini v. Felton, 521 U.S. 203 (1996)--has been
invoked by the courts only in cases involving government monitoring of
religious institutions that receive public funds.
An invalidation of WRFA on Establishment Clause grounds would be
grounded in paradox; it would be to say that an assuredly valid
government purpose of combating religious discrimination may be
accomplished only by a reading of section 701(j) so circumscribed as to
fail to afford religiously observant employees a genuine modicum of
protection. Surely, that cannot be the constitutionally mandated
result.
The Supreme Court's rulings in United States v. Lopez, 514 U.S. 549
(1995), and in City of Boerne v. Flores, 521 U.S. 507 (1997), among
other decisions reflecting a change of the Court's approach to
legislation enacted in reliance upon the Commerce Clause and section 5
of the Fourteenth Amendment, respectively, give rise to an
understandable concern as to the prospects for WRFA should it be
enacted.
Turning to the Boerne issue first, the Court went to significant
lengths in that case to distinguish its decision striking down the
Religious Freedom Restoration Act as applied to the states from earlier
cases upholding the authority of the Congress under section 5 to enact
the voting rights laws. To the extent the Civil Rights Act of 1964 is
grounded in section 5, WRFA is simply a clarification of terms from
Title VII of the 1964 act, as amended. In any event, Boerne relates to
the question of whether WRFA will be enforceable against state and
local governments. However, that issue may be resolved--and important
as it is to afford stronger protections against religious
discrimination to both public and private sector employees--even a WRFA
whose reach is limited by an expansion of Boerne would still serve a
crucial purpose.
In addition, and crucially, the 1964 Civil Rights Act is founded in
the Commerce Clause. Lopez notwithstanding, Commerce Clause legislation
remains valid so long as Congress has a rational basis for concluding
that the regulated activity ``substantially affects'' interstate
commerce. United States v. Lopez, 514 U.S. at 558-59. The prohibition
on invidious discrimination in connection with employment is the sine
qua non of legislation with respect to an activity that ``substantially
affects'' interstate commerce. See Lopez, 514 U.S. at 559, citing Heart
of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) (upholding
Title II of the Civil Rights Act of 1964 and, by implication, the rest
of the Act) as an example of ``congressional Acts regulating intrastate
economic activity where we have concluded that the activity
substantially affected interstate commerce.''
Conclusion
Enactment of the Workplace Religious Freedom Act will constitute an
important step towards ensuring that all members of society, whatever
their religious beliefs and practices, will be protected from an
invidious form of discrimination. The refusal of an employer, absent
undue hardship, to provide reasonable accommodation of a religious
practice should be seen as--and was intended by Congress in 1972 to be
treated as--a form of religious discrimination. And religious
discrimination should be treated fully as seriously as any other form
of discrimination that stands between Americans and equal employment
opportunities.
In assuring that employers have a meaningful obligation to
reasonably accommodate their employees' religious practices, WRFA will
restore to Title VII's religious-accommodation provision the weight
that Congress originally intended. And, although necessarily framed as
a strengthening of the legal protection to be afforded religiously
observant employees, enactment of WRFA will, it is hoped, have a
benefit that is not strictly legal. It may cause employees and
employers to start talking to each other where they have not--employers
may not think they now have to address issues of accommodation because
they believe the law is on their side, and some employees may simply
think they have no recourse. The true mark of this bill's success, when
it becomes law, will be if there is less, not more, litigation over
accommodation of religious practice.
We come to this hearing some two months before the Jewish holiday
of Pesach (Passover). During that holiday, as at other times of the
year, there are a number of days on which work is religiously
proscribed. Too often a season that should be one of joy becomes, for
Jews who observe the proscription on work, a period of anxiety and,
sometimes, blighted careers as they face the possibility of losing
their livelihood for following the dictates of their faith.
Nearly thirty years ago, Justice Thurgood Marshall concluded his
dissent in Hardison by saying:
The ultimate tragedy [of this decision] is that despite Congress'
best efforts, one of this Nation's pillars of strength--our hospitality
to religious diversity--has been seriously eroded. All Americans will
be a little poorer until today's decision is erased. 432 U.S. at 97.
Perhaps we will come to look back on the hearing held today as the
harbinger of the realization of Justice Marshall's hope--that the civil
rights laws of this great nation will give due regard to the religious
diversity that is one of its marks of pride.
endnotes
\1\ Section 701(j) of Title VII provides, with respect to the
definition of ``religion'' as follows:
The term ``religion'' includes all aspects of religious observance
and practice, as well, as belief, unless an employer demonstrates that
he is unable to reasonably accommodate to an employee's or prospective
employee's religious practice without undue hardship on the conduct of
the employer's business.
This language, in essence, codifies a 1967 Equal Employment
Opportunity Commission guideline that provided a definition of
``religion'' for purposes of enforcement of the law prohibiting
employment discrimination on the basis of religion. In enacting this
provision, Congress modified the guideline so as to shift from the
employee to the employer the burden of proving that the accommodation
sought is not reasonable.
\2\ E.g., Beadle v. City of Tampa, 42 F.3d 633 (11th Cir. 1995),
cert. denied, 515 U.S. 1152, and Beadle v. Hillsborough County
Sheriff's Dep't, 29 F.3d 589 (11th Cir. 1995), cert. denied, 515 U.S.
1128 (1995).
\3\ E.g., United States v. Bd. of Education, 911 F.2d 882 (3d Cir.
1990).
\4\ Justice Marshall's discussion of section 701(j)'s legislative
history is worthy of note. Section 701(j) was introduced by Senator
Jennings Randolph explicitly to rebut cases suggesting that ``to excuse
religious observers from neutral work rules would `discriminate against
* * * other employees' and `constitute unequal administration of the
collective-bargaining agreement.'[citing Dewey v. Reynolds Metals Co.,
429 F.2d 324 (6th Cir. 1970), aff'd by an equally divided Court, 402
U.S. 689 (1971)] * * * The primary purpose of the amendment, [Senator
Randolph] explained, was to protect Saturday Sabbatarians like himself
from employers who refuse `to hire or continue in employment employees
whose religious practices rigidly require them to abstain from work in
the nature of hire on particular days.' [citing 118 Cong. Rec. 705
(1972)] His amendment was unanimously approved by the Senate on a roll-
call vote [citing 118 Cong. Rec. 731 (1972)], and was accepted by the
Conference Committee [cites omitted], whose report was approved by both
Houses. 118 Cong. Rec. 7169, 7573 (1972). Yet the Court today, in
rejecting any accommodation that involves preferential treatment,
follows the Dewey decision in direct contravention of congressional
intent.'' 432 U.S. at 89.
\5\ The court also noted, in yet another example of the courts'
restrictive reading of the undue burden standard, that the hospital was
not obligated to accommodate Brener's religious observance if that
would lead to ``disruption of work routines and a lessening of morale
among other pharmacists.''
\6\ See, in this regard, Shelton v. University of Medicine &
Dentistry of New Jersey, 223 F.3d 220 (3d Cir. 2000) (opinion by Judge
Scirica with Judges Alito and Aldisert concurring). While the nurse's
claim was dismissed in that case for her failure to accept the
hospital's proffer of a reasonable accommodation, the federal court of
appeals asserted, in the context of a discussion of ``undue burden,''
that ``we believe public trust and confidence requires that a public
hospital's health care practitioners--with professional ethical
obligations to care for the sick and the injured--will provide
treatment in time of emergency.'' 223 F.3d at 228. Nothing in this
statement suggests that the court's analysis would be different in
light of the change contemplated by WRFA.
\7\ See, as to both propositions, Anderson v. U.S.F. Logistics
(IMC), Inc., 274 F.3d 470 (7th Cir. 2001) (case turns on employer's
having offered a reasonable accommodation, not undue hardship issue);
Parrott v. District of Columbia, 1991 WL 126020, 58 Empl. Prac. Dec. P
41,369 (D. D.C. 1991) (strongly worded discussion of the undue hardship
that the requested accommodation would pose for employer suggests that
WRFA standard would not have made a difference in result); Bruff v. N.
Miss. Health Services, Inc., 244 F.3d 495 (5th Cir.) (similarly), cert.
denied, 534 U.S. 952 (2001); Wilson v. U.S. West Communications, 58
F.3d 1337 (8th Cir. 1995) (case turns on employee's failure to accept a
reasonable accommodation, not undue burden); Johnson v. Halls
Merchandising, Inc., 1989 WL 23201 (W.D. Mo. 1989) (plaintiff's claim
dismissed because the defendant attempted to reasonably accommodate
plaintiff's religious practices but ``plaintiff did not make any effort
to cooperate with her employer or to accommodate her beliefs to the
legitimate and reasonable interests of her employer, i.e., to operate a
retail business so as not to offend the religious beliefs or non
beliefs of its customers'').
\8\ New York's amended religious accommodation law is, to be sure,
not identical with H.R.1431. Nevertheless, this New York law
incorporates the most crucial aspect of H.R.1431--a heightened standard
for determining whether a proposed religious accommodation will impose
an ``undue hardship.''
The revised New York law incorporates two significant new elements.
Firstly, subsection (a) of Section 296(10), as amended, explicitly
extends the obligation of an employer to provide a reasonable
accommodation of an employee's religious practice to any ``sincerely
held practice of his or her religion;'' the prior law had referenced
only holy day observance. Secondly, subsection (a), as amended, goes on
to provide that it is a discriminatory practice for an employer to
require an employee or prospective employee ``to violate or forego a
sincerely held practice of his or her religion * * * unless, after
engaging in a bona fide effort, the employer demonstrates that it is
unable to reasonably accommodate the employee's or prospective
employee's sincerely held religious observance or practice without
undue hardship on the conduct of the employer's business.''
``Undue hardship'' is defined by subsection (c)(1) to mean ``an
accommodation requiring significant expense or difficulty (including a
significant interference with the safe or efficient operation of the
workplace or a violation of a bona fide seniority system)''--a
definition that is similar to, although not identical with, the
definition of ``undue hardship'' in WRFA. While WRFA does not include
the parenthetical, the provision that an employer shall not be
obligated to accede to ``a violation of a bona fide seniority system''
is consistent with the provisions of Section 703(h) of Title VII, which
will continue to be applicable to federal religious accommodation cases
if WRFA is adopted, as it is now. Further, the clause regarding ``safe
or efficient operation of the workplace'' simply expands on the meaning
of ``significant difficulty or expense.'' Subsection (c)(1) goes on to
list a number of factors to be considered in determining whether the
accommodation constitutes ``an undue economic hardship,'' a list which
is, again, similar, but not identical, to the nonexclusive list to be
found in WRFA.
\9\ This carving up of religious claims into two different
categories is both philosophically troubling and possibly
constitutionally problematic, as it opens WRFA up to claims that it
violates the Establishment Clause by privileging some religious beliefs
over others. See Estate of Thornton v. Calder, Inc., 472 US 703 (1985).
\10\ Although the continued vitality of the Lemon test is in doubt,
it is useful to apply that analysis in this context because it is a
restrictive reading of what government action is allowed pursuant to
the Establishment Clause.
______
Chairman Andrews. Thank you very, very much.
Mr. Gray, welcome to the subcommittee.
Mr. Gray. Thank you.
Good afternoon, Chairman Andrews, Ranking Member Kline,
distinguished members of the committee. I wanted to thank you
for the opportunity to speak to you today on this very
important piece of legislation, as well as appreciate Chairman
Andrews' initial thoughts of the careful deliberations that the
committee intends to do on this amendment or potential
amendment to Title VII of the Civil Rights Act of 1964.
As a former political science major and avid follower of
the legislative process, I also just want to tell you what an
honor it is to be here and to participate, albeit just a small
part, in the legislative process.
Chairman Andrews. There are no small parts, only small
witnesses, which you are not one, I am sure. [Laughter.]
STATEMENT OF MICHAEL GRAY, PARTNER, LABOR AND EMPLOYMENT
PRACTICE, JONES DAY
Mr. Gray. Well, I appreciate it, Chairman.
I am here on behalf of HR Policy Association, an
association of chief human resource executives at 250 of the
largest employers here in the United States. Our members have
more than 12 million employees here in the United States and
another 6 million abroad.
I am a partner at Jones Day, and I spend my days working
with corporations--small, medium, and large--in trying to deal
with the difficult regulations that confront them in the
workplace.
We are here today to look at the act, and I am here to sort
of bring some of the practicalities that corporations in the
United States see on a day-to-day basis with respect to
religious discrimination, religious accommodation, and the need
for amendment to this very historic Civil Rights Act of 1964.
What we have seen in practice is that, contrary to what we
have heard from some critics, Title VII actually is providing
appropriate accommodation to employees and is in no need of
repair.
The act before us today, WRFA, the Workplace Religious
Freedom Act, really goes too far in trying to remedy problems,
and when we take a look at the problems that are cited, what we
find is that there are not the sort of widespread problems in
the workplace that are not being remedied by avenues already
provided under the Civil Rights Act.
For example, what we have seen in the workplace is two
large sets of proposed accommodations. One falls into the
category of dress and appearance, as well as days off. That is
sort of the first category, something that employers tend to
see each day.
The Tannenbaum study, which I cite, as well as a number of
other points, in the written testimony talks about that nearly
80 percent of the responding corporations said that they have
some type of days off provided, whether religious or not, for
their employees. So what we are seeing is that employers see
the issue and are currently addressing it.
Of course--and there are examples cited in everybody's
testimony--there are times when corporations may not be doing
the right thing, and there are adequate avenues for redress.
One, employees can go to the EEOC. There is private litigation.
Cases are cited in the testimonies of everybody sitting here
today. And, also, the EEOC has been an advocate on behalf of
potentially aggrieved employees.
We have also seen quite recently, in the cases brought by
the EEOC, success where, if there is a situation where
corporations are not providing the rights provided under Title
VII, the courts are stepping in and providing redress, and we
have actually had a couple of recent decisions on that point.
The act, I think, is a combination of both the rifle shot
as well as the shotgun approach, and it is too difficult in our
short time period to really get to all the issues, Mr.
Chairman, but I do think the testimony lays out a number of the
issues, and I just wanted to cite a couple more in my closing
moments.
In trying to take the framework from the Americans with
Disabilities Act and apply that to your religious context,
there is not sort of a one-to-one correspondence. For example,
the test set forth in WRFA would like you to sort of put an
easy number on the cost of a potential accommodation.
Now that may be much easier. In fact, we have seen that
both in cases and, frankly, my clients have seen that where if
someone requires a new keyboard or a new backrest or someone to
assist them, they are very quantifiable, or in the words of
WRFA, identifiable.
But if you take that same context and you then apply it to
the religious accommodation, it is much more difficult. All the
recent examples, many of which are cited in the testimony,
where people's acts affect others in the workplace----
Chairman Andrews. Mr. Gray, if we could just ask you to
summarize.
Mr. Gray. Absolutely. The act would call for employers to
select one group over another within it. You do not have to go
outside the workplace. So what our membership is asking is that
you take a deliberate look at this and see whether or not, in
fact, the current system is broke before we go and amend this
very historic Civil Rights Act.
[The statement of Mr. Gray follows:]
------
Chairman Andrews. Thank you very much.
Ms. Al-Suwaij, welcome to the committee.
STATEMENT OF ZAINAB AL-SUWAIJ, EXECUTIVE DIRECTOR, AMERICAN
ISLAMIC CONGRESS
Ms. Al-Suwaij. Thank you very much.
Mr. Chairman and members of the subcommittee, thank you
very much for inviting me to testify to you today on the very
important topic. As someone who is an American citizen by
choice, not by birth, it is a special honor to be invited to
speak before you today.
I was drawn to become an American citizen because of our
country's sincere and unique commitment to religious freedom
and individual rights. I am here today to share with you my
perspective on respecting these rights in workplaces across the
country.
I appear before you as a Muslim-American who experienced
discrimination in workplace, as well as in my capacity as an
executive director of the American Islamic Congress, a civil
rights organization promoting tolerance and exchange of ideas
among Muslims and between other people.
As a native of Iraq, I grow up not experiencing individual
liberties. Instead, my childhood was spent under a repressive
dictatorship, and the environment that I grow up with in the
classrooms that simply a student can disappear because they are
discussing political subjects in school. Add to that the hate
messages that the teachers always mentioned in the classrooms.
I grow up wearing my head scarf, or we call it in Arabic a
hijab. It may seem hard to believe, but in the 1980s, Basra in
Iraq was largely secular city, and I was only student in my
whole school that is wearing the head scarf, because of my
family tradition as well as it was something that I decided to
do when I was young. I was always criticized by my teachers
because of that, but I stayed true to my beliefs.
In 1991, I joined the uprising against Saddam Hussein's
government as well as I was one of the first women who would be
there in the industry to overthrow Saddam and his government.
Unfortunately, this uprising failed while we are waiting for
the American help and it did not come.
I experienced a real freedom when I moved to the United
States in 1992. For the first time, I could be who I am and I
could say what I want and comfortable in my own identity and
just like a dream come true.
Of course, life is never so simple. I remember going for a
job interview many years ago. The woman who was interviewing me
simply was not comfortable with me wearing a head scarf, and at
the beginning, she asked me if I wear my head scarf only at
night or I wear it during the day. I told her, ``Well, I wear
it when I am in public.'' At that point, the interview ended.
Later on, I worked at Interfaith Refugee Ministry as a
refugee resettlement officer, and that was part of the
Episcopal Social Service. Many of my clients fled their
countries because of persecution, whether through religious
persecution or politics, and one of my clients applying for a
job, and the same thing happened to her. Basically, the
employer asked her to put her head scarf in a way that is very
comfortable for his customers when they come and see her.
At the same time, I was representing another client of
mine, and he asked his employer for a break for 5 minutes to
have a midday prayer, and his employer denied that right for
him. At the same time, it was OK for people to go and smoke
cigarettes every hour outside the building. So I did my best to
help these people, but, unfortunately, I was not successful.
After the terrible attack of 9/11, I decided to take an
action. The terror I thought that I had left behind is
following me here to my country that I love and my family.
With a group of concerned Muslims, I co-founded the
American Islamic Congress. We promote nonreligious civic
initiatives, which challenge increasingly the negative
persecution of Muslims by advocating responsible leadership and
two-way interfaith understanding.
As a Muslim-American, I feel and I strongly understand
there is the freedom that I enjoy in this country, and I would
like many other people around the world to enjoy the same
rights. To be specific, Muslim-American women who choose to
wear hijab have the right to work with their head scarf on and
should not fear persecution from their employers.
Muslim-American workers who choose to pray five times a day
have the right to conduct prayers during work hours. Muslim-
Americans who choose have the right to abstain from handling
alcohol or pork at work. And all of these personal freedoms do
not need to disturb American workplaces and should be able to
be integrated into a decent way that respects workers of all
backgrounds.
As someone who grow up under hard repression and religious
intolerance, I recognize how precious American freedoms are. As
someone who had witnessed some examples of anti-Muslim
sentiments in American workplaces, I want to ensure that both
employees and employers work together to an environment of
mutual respect, as well as we are proud to speak out on behalf
of protecting religious diversity in the workplace, and we
believe H.R. 1431 will protect individual rights and enhance
interfaith understanding.
Thank you very much.
[The statement of Ms. Al-Suwaij follows:]
Prepared Statement of Zainab al-Suwaij, Executive Director, American
Islamic Congress
Mr. Chairman and Members of the Committee: Thank you for inviting
me to testify to you today on this important topic. As someone who is
an American citizen by choice--not by birth--it is a special honor to
be invited to speak before you today. I was drawn to become an American
citizen because of our country's sincere and unique commitment to
religious freedom and individual rights. I am here today to share with
you my perspective on respecting these rights in workplaces across the
country.
I appear before you as a Muslim-American who has experienced
discrimination in the workplace, as well as in my capacity as executive
director of the American Islamic Congress, a civil rights organization
promoting tolerance and the exchange of ideas among Muslims and between
other peoples.
As a native of Basra, Iraq, I did not grow up experiencing
individual liberty. Instead, my childhood was spent under a repressive
dictatorship, in an environment where classmates could disappear simply
for discussing politics in school. Rather than encourage respect for
diversity and religious difference, teachers often taught hatred. I
recall one elementary school teacher telling our class that Hitler was
a great man because he burned Jews alive.
Even as a child, I stood out. I challenged teachers who praised
Hitler, I refused to join the Ba'ath party--and I wore hijab. It may
seem hard to believe, but in the early 1980s, Basra was a largely
secular city and I was the only student in my third-grade class to wear
the hijab. I come from an established family of Iraqi clerics; wearing
hijab is part of my family tradition. For that decision, I was
criticized by my teachers in the classroom--but I stayed true to my
beliefs.
In 1991, I participated in the failed uprising against Saddam
Hussein, which initially succeeded in liberating most Iraqi provinces
but was then crushed when the US broke its promise to help. I fled Iraq
with nothing, met my husband, and moved to the US. For the first time
in my life, I experienced real freedom. I could say what I wanted, be
who I wanted, and be comfortable in my own identity. It was a dream
come true.
Of course, life is never so simple. I remember going for a job
interview some years ago. The woman interviewing me was clearly
uncomfortable because of my hijab. At one point, she asked me: ``Do you
wear that thing on your head at night only, or also during the day?''
The implication was clear: Wearing hijab on the job was a no-no. I
calmly explained to her that I wear the hijab whenever I am in public,
but I realized that the interview was effectively over.
Later, I worked at Interfaith Refugee Ministry, the refugee
resettlement arm of Episcopal Social Service. Many of my clients were
individuals fleeing repression in the Muslim world who had come to the
US seeking a better life. Some of my clients experienced discrimination
in the workplace because of their religious practices. One woman was
asked to change the way she covered her hair at work so it would be
less ``troublesome'' to customers. One man requested five minutes at
noon for midday prayer, but was denied by his employer. I did my best
to assist them, but typically found there was little I could do.
After the terrible terror attacks of September 11, 2001, I decided
to take action. The terror I thought I had left behind had suddenly
followed me here, targeting the country I loved and me and my family.
With a group of concerned Muslim-Americans, I co-founded the American
Islamic Congress.
We are a non-religious civic initiative challenging increasingly
negative perceptions of Muslims by advocating responsible leadership
and `two-way' interfaith understanding. As Muslim-Americans, thriving
amidst America's multicultural society and civil liberties, we promote
these same values for the global Muslim community. We are not afraid to
advocate unequivocally for women's equality, free expression, and
nonviolence--making no apologies for terrorism, which primarily claims
Muslim lives.
We are ``passionate about moderation'' and led by a group of young
activists in their 20s and 30s. We are advancing a new responsible
Muslim civic leadership. In fact, every month we host a Capitol Hill
Distinguished Speakers Series on Muslim affairs, co-sponsored here on
the Hill by the Religious Freedom and Anti-Terrorism caucuses.
As the executive director of the American Islamic Congress, I
appeal to you today to take action to protect religious liberty and
individual rights in the workplace. We Muslim-Americans, passionate
about moderation, share the values this country has been built on. Many
of us have come to the United States fleeing religious persecution and
political repression. Muslim-Americans deserve the same equal treatment
as all other Americans, and we do not want to see our religion used to
discriminate against us.
To be specific, Muslim-American women who choose to wear hijab have
the right to work with their headscarf on and should not fear
repercussions from employers. Muslim-American workers who choose to
pray five times a day have the right to conduct prayers during work
hours. Muslim-Americans who choose to have the right to abstain from
handling alcohol or pork. All of these personal freedoms do not need to
disrupt American workplaces and should be able to be integrated in a
decent way that respects workers of all backgrounds.
Respecting workplace diversity, I should add, extends to Muslim
employers as well. As part of our ``two-way'' understanding, we in the
Muslim community need to take practical steps to address discrimination
from within our own community. Muslim employers should similarly not
discriminate on the basis of gender, race, or religion.
Indeed, there is an enormous religious diversity within the Muslim
community, which must be recognized. We Muslim-Americans are a
remarkable diverse community: Sunnis of diverse religious traditions,
Shi'a of diverse religious traditions, numerous minority sects, and of
course people of Muslim heritage who are not religious. There is not
one way to practice Islam, and the diversity within our community needs
to be respected.
The American Islamic Congress is proud to celebrate the diversity
of the Muslim community and its contribution to the diversity of
American society. We are proud to speak out on behalf of protecting
religious diversity in the workplace, and we believe resolution 1431
will protect individual rights and enhance interfaith understanding.
As someone who grew up under hard repression and religious
intolerance, I recognize how precious American freedoms are. As someone
who has witnessed some examples of anti-Muslim sentiments in American
workplaces, I want to ensure that both employees and employers work
together in an environment of mutual respect. By coming together to
promote religious diversity here in the US, we will offer a shining
example to countries and societies around the world of how people of
diverse religious outlooks can work together to advance a tolerant and
free society.
______
Chairman Andrews. Ms. Al-Suwaij, thank you for your very
eloquent and moving testimony. Thank you very, very much.
Ms. Goldstein, we are very happy to have you with us.
STATEMENT OF JUDY GOLDSTEIN, SPEECH THERAPIST
Ms. Goldstein. Thank you. And good afternoon, Mr. Chairman
and distinguished members of the subcommittee.
I thank you for inviting me here today and allowing me the
opportunity to share with you my recent experience as a
Sabbath-observant Jew in the workforce.
My name is Judy Goldstein, and I am a New Jersey resident.
I have recently graduated with a master's in speech and
language pathology. Providing speech and language services to
the pediatric population is my passion, as I believe it offers
a child the central keys to achieving success in life.
On January 8, 2008, I was interviewed by a supervisor of a
public school located approximately a 45-minute drive from my
home. The position for which I interviewed entailed providing
speech and language services for children in kindergarten
through fifth grade. It was a nonunion position.
On January 13, 2008, I received a job offer orally from the
H.R. Department. At that time, I was informed that the job was
from Monday through Friday, 8:55 a.m. to 3:35 p.m.
As a person who strives to always act honorably, when I
accepted the position, I explained that I am a Sabbath observer
and that, in order for me to properly observe the Sabbath, I
would be required to leave work 1 hour early on certain
Fridays, essentially during the winter months when the sun sets
early. This would allow me adequate time to ride home before
the onset of the Sabbath.
The gist of her response was, ``I am sorry. We would have
loved to have you on board. However, we cannot accommodate your
needs. There are a lot of individuals employed, and they each
have their own specific religious requirements. If we
accommodate your needs, we need to accommodate theirs.''
It was never my intention to shirk my responsibilities to
the school or to the students. I was willing to work out a
mutually acceptable arrangement with the school so that both of
our requirements could be met. For example, I offered to come
in 40 minutes early on Friday, the time allotted for
preparation, and prepare then. Additionally, I offered to skip
the 20-minute lunch break I was entitled to.
Again, to these suggestions, the response was negative.
These alternatives would not work as I would be required to be
there for the contractual school hours from 8:55 a.m. to 3:35
p.m. period.
I then contacted a supervisor who initially interviewed me
and explained my predicament. She said that it was most likely
a problem to accommodate my needs, but that she would consult
H.R.
She did add that she might be able to offer me a high
school caseload instead of the initial offer at the elementary
school. This would avoid the problem as the high school ends at
2:20 p.m. However, this was not the job I was interviewed for,
nor the one I was offered and accepted.
I reiterated my desire to work with the caseload for which
I had interviewed. We concluded that she would get back to me
after speaking with Human Resources.
A couple of days later, I emailed the supervisor to ask her
where the job offer stood. She replied that the district was
unable to accommodate my request and, therefore, assumed I was
not taking the position. But, in reality, I had never rejected
the position. I accepted the position. But when the district
decided that it would not accommodate my religious needs, it
effectively rescinded the offer.
I contacted an Orthodox Jewish organization that deals with
these kinds of issues, and they in turn referred me to a
lawyer. He explained to me that religious accommodations is not
something that is provided at the whim of an employer, but that
is a requirement provided for in federal and state law. The
attorney advised me to send copies of these laws to the school
along with a letter reiterating my willingness to make up the
accommodated time.
The H.R. Department responded that they were providing an
accommodation by offering an alternative position at the junior
high, but, as I have already stated, this was neither the job I
sought or was interviewed for. It was an entirely new position.
My interest was to find employment, not to pursue this
further in court. It was not to embarrass anyone or get anyone
in trouble. It was not to force anyone to hire me and work in a
strained environment. To be honest, I was also worried about
what effect it would have on my future prospects as employers
surely do not want to hire employees that cause trouble.
Indeed, it is not without concern for my future prospects that
I appear here before you today.
Mr. Chairman and distinguished members of the subcommittee,
I am neither a legislator nor a lawyer, and I cannot speak in
any informed way about the law, but I can say this: I was
interviewed for a job in my chosen field. I was deemed fully
competent and was offered a position on merit and ability. I
accepted. I disclosed my need for Sabbath accommodation. The
offer was immediately rescinded.
I suggested a number of ways I could have fulfilled my
professional responsibilities. No one claimed that these
alternatives would not work. It was not the type of position,
unlike that of a teacher in charge of a classroom of students,
for example, that required me to be there until the bell rang.
I was told that I was being offered an accommodation,
though it was a different position.
So bottom line is that I was not hired in the end because
of my religious observance.
Again, thank you for allowing me to testify today about my
experience. It was a disheartening and disillusioning one for
me. But if my testimony will help others be spared the same
experience, then I feel that I have made a modest contribution.
Thank you for listening.
[The statement of Ms. Goldstein follows:]
Prepared Statement of Judy Goldstein, Speech Therapist
Thank you and good afternoon, Mr. Chairman and distinguished
members of the Subcommittee.
I thank you for inviting me here today and allowing me the
opportunity to share with you my recent experience as a Sabbath-
observant Jew in the workplace. My name is Judy Goldstein, and I reside
in New Jersey. I have recently graduated from Nova Southeastern
University, with a master's degree in Speech and Language Pathology.
Providing speech and language services to the pediatric population is
my passion, as I believe it offers a child the essential keys to
achieving success in life.
On January 8, 2008, I was interviewed by a supervisor of a public
school located approximately a 45 minute drive from my home. The
position for which I interviewed entailed providing speech and language
services for children in kindergarten through 5th grade. It was a non-
union position. On January 13, 2008, I received a job offer, orally,
from the Human Resource Representative. At that time, I was informed
that the position was from Monday through Friday, 8:55 AM to 3:35 PM.
As a person who strives to always act honorably and ethically, when I
accepted the position, I explained that I am a Sabbath observer and
that, in order for me to properly observe the Sabbath, I would be
required to leave work one hour early on certain Fridays of the year--
essentially during winter weeks--when the sun sets early. This would
allow me adequate time to arrive home before the onset of the Sabbath.
The gist of the representative's response was, ``I am sorry, we
would have loved to have you on board. However, we cannot accommodate
your needs. There are many other individuals employed who have their
own specific religious requirements and if we accommodate your needs,
we will have to accommodate everyone's needs''.
It was never my intention to shirk my responsibilities to the
school or to the students. I understood that it might be necessary--and
I was quite willing--to work out a mutually acceptable arrangement with
the school so that both of our requirements could be met. For example,
I offered to come in 40 minutes earlier on Friday, the time allotted
for preparation time, and prepare then. I explained that preparation
time does not involve participation of the students, and therefore is
not dependent on their presence. I was also willing, and offered, to
skip the 20 minute lunch break I was entitled to. Again, to these
suggestions, the response was negative--the school was sorry, but these
alternatives would not work, as I was required to be there for the
contractual school hours, which are 8:55-3:35. Period. I was willing to
pursue the matter further and pursue other arrangements but it was
clear to me that the discussion was over.
I then contacted my prospective supervisor who initially
interviewed me, and explained my predicament. She said that the need
for accommodation was most likely a problem, but that she would consult
HR. She did add that there was a possibility she might be able to offer
me a high school caseload, instead of the initial offer at the
elementary school. This would avoid the problem, as the high school
ends at 2:20 PM. However, in all honesty, this possible offer was
deeply disappointing and disconcerting to me. This was not the job I
interviewed for, nor the one I was offered. It was not in the area of
my specialty, nor the one of my choice. Indeed, I reiterated that my
strength and interest is to work with younger children, and I again
expressed my desire to work with the caseload for which I had
interviewed. At the end of our discussion we concluded that she would
get back to me after speaking to human resources.
A couple of days later, I emailed the supervisor to ask where the
job offer stood. She replied that the district was unable to
accommodate my request to leave work 1 hour early a week for
approximately 3 months in the winter, and therefore assumed that I was
not taking the position. But I had never really rejected the position.
In fact, I accepted it, but when the district decided that it would not
accommodate my religious needs, it effectively reneged on the offer.
I contacted an Orthodox Jewish organization that deals with these
kinds of issues, and they in turn referred me to an experienced
discrimination attorney. He explained to me that religious
accommodation is not something that is provided at the whim of an
employer or out of the goodness of his or her heart, but that it is a
requirement provided for in Federal and State law.
The attorney advised me to send copies of these laws to the school
officials, along with a letter, reiterating my willingness to work on
any other non-religious work days or early morning non-scheduled
working hours to make up the accommodated time. The HR department
responded that they were providing an accommodation by offering an
alternative position at the Junior high school. But, as I have already
stated, this was neither my specialty nor my interest. It was not the
job I sought and was interviewed for. It was not the position I was
offered and accepted. It was not the position that was represented to
me--it was something else entirely.
My interest was to find employment not to pursue this further in
court. It was not to embarrass anyone or get anyone in trouble. It was
not to force anyone to hire me and work in a strained environment. To
be honest, I was also worried about what effect it would have on my
future prospects--as employers surely do not want to hire employees
that ``cause trouble.'' Indeed, it is not without concern for my future
prospects that I appear here, before you, today.
Mr. Chairman and distinguished members of the Subcommittee, I am
neither a legislator nor a lawyer--and I cannot speak in an informed
way about the law. But I can say this--I was interviewed for a job in
my chosen field. I was deemed fully competent and was offered a
position on merit and ability. I accepted. I disclosed my need for
Sabbath accommodation. The offer was immediately rescinded. I suggested
a number of ways I could fulfill my professional responsibilities. No
one claimed that these alternatives wouldn't work. It was not the type
of position--unlike that of a teacher in charge of a classroom of
students, for example--that required me to be in school until the bell
rings. I was told that I was being offered an accommodation, though it
was a different position. The bottom line is that I was not hired in
the end because of my religious observances--If we have to accommodate
your religious needs, we'll have to accommodate others.
Again, thank you for allowing me to testify today about my
experience. It was a disheartening and disillusioning one for me. But
if my testimony will help others be spared this same experience, then I
feel that I have a modest contribution.
Thank you for listening.
______
Chairman Andrews. Well, Ms. Goldstein, your very
provocative and insightful testimony, we think, occurred
because you are neither a lawyer nor a legislator. [Laughter.]
We thank you for both of those points and thank you for
your testimony.
Mr. Standish, welcome to the subcommittee.
STATEMENT OF JAMES STANDISH, DIRECTOR OF LEGISLATIVE AFFAIRS,
SEVENTH-DAY ADVENTIST CHURCH
Mr. Standish. Thank you so much.
Chair Andrews, Ranking Member Mr. Kline, other members of
the committee, it is an honor to represent the headquarters of
the Seventh-Day Adventist Church. There are about 15 million
Seventh-Day Adventists around the world. We operate over 600
health care facilities, and we have about 1.3 million students
enrolled in our education system.
I am particularly proud of the work that we do for the
least advantaged in our world particularly. For example, our
hospitals and clinics in sub-Saharan Africa treat over 800,000
HIV-AIDS positive patients every year. That is the outworking
of our faith and our Lord and Savior Jesus Christ.
Another commitment that we make as Seventh-Day Adventist
Christians is to aim to keep the Ten Commandments under the
grace of Christ. That is all 10, including the commandment to
rest on the Sabbath Day. Increasingly, however, we are finding
American employers unwilling to accommodate our sincerely
religious belief, and not just ours, but people of faith across
the religious spectrum.
We have heard today from a Muslim woman, a Jewish
representative. I am a Christian. If you talk to Sikhs and
other Christians, you will find that this problem pervades
across the spectrum.
Indeed, you do not have to just take our word for it. The
U.S. Equal Employment Opportunity Commission reports that
between 1993 and 2006, the number of religious discriminations
claims filed with them went up 83 percent. That is a huge
increase. During that same period, for point of reference,
claims involving racial discrimination went down 8 percent, and
other major claim categories also held steady or went down. We
have a serious civil rights problem of an increase in the
refusal to accommodate the religious beliefs of American
workers.
Part of the reason for this is because of the current weak
state of the law, which permits employers to arbitrarily refuse
to accommodate the sincerely held religious beliefs of
employees. The Workplace Religious Freedom Act will fix the
loopholes in the current law to ensure that when an American
employee comes forward with a faith commitment that they are
treated with respect and dignity and that, if they can be
accommodated, they are accommodated instead of being
marginalized from the American economy.
There are two principal objections to this bill. First, we
are told by opponents of the bill that this will result in an
increase in litigation on employers. We know that is not the
fact for two reasons. First of all, the economics of bringing
these cases disfavors their bringing. Particularly, the amounts
of damages tend to be very, very low because the employees who
are impacted disproportionately are low-income employees. So
the amounts of damages, which are lost wages, are very, very
small.
And members of the private plaintiffs' bar do not take
these cases now. They are not going to take them after WRFA is
enacted because the economics do not change.
Secondly, we have an example up and going right now, and
that is in New York State where we have a WRFA-like standard.
In New York State, we have been told by the Human Rights
Commission there that the claims of religious discrimination
have actually dropped 4 of the last 5 years. After the WRFA-
like standard was implemented, the number of claims dropped 4
of the last 5 years. They dropped on the state basis. They will
drop on the national basis because it helps people come
together.
Secondly, we are told that if WRFA is passed, it will
result in perverse outcomes where third parties are harmed,
whether those are gay, lesbian, bisexual employees being
harassed in the workplace or an inhibition of patients to gain
health care services.
Once again, we know that this claim is incorrect. We know
that for two reasons. First of all, the modest standard in WRFA
would no means require employers to refuse products or services
on a timely basis. The standard just simply is not that strong.
Secondly, once again, in New York, we have the standard up
and going, and opponents of this bill have yet to find a single
case in which harassment was privileged in New York under the
WRFA standard or services were denied.
They have found claims that were brought nationwide over
the last 30 years, a very, very small handful. In each case,
the plaintiff lost. They would lose, they lost now, and they
will lose in the future.
Before I close, I want to show you a picture. I cannot help
it. I am a proud dad. These are my daughters. If my daughters
grow up and they want to follow the faith of their mother,
their two grandmothers, or their four great-grandmothers, how
are they going to be treated in the workplace? Are they going
to be marginalized? Are they going to be harassed? Are they
going to be fired when they could easily be accommodated?
I would suggest to you this afternoon the answer to that
question is largely in your hands. If we do not pass WRFA, the
problems to Seventh-Day Adventists and other people of faith in
the workplace will increase. If you do pass it, we will have a
balanced bipartisan piece of legislation that finds the middle
ground to ensure that our value of religious freedom is
protected and workers' rights.
Thank you very much, Mr. Chairman.
[The statement of Mr. Standish follows:]
Prepared Statement of James D. Standish,\1\ Director of Legislative
Affairs, Seventh-Day Adventist Church World Headquarters
Chairman Andrews, Ranking Member Kline and Subcommittee Members, I
am grateful for the opportunity to testify in support of the Workplace
Religious Freedom Act, H.R. 1431 (WRFA), on behalf of the Seventh-day
Adventist Church.
The Seventh-day Adventist Church has 15 million members
worldwide.
Adventists operate 165 hospitals, 432 clinics and
dispensaries, 123 nursing homes and retirement centers, and 34
orphanages worldwide. In addition, Adventists operate three medical
schools, three dental schools, 50 schools of nursing and six schools of
public health.
There are 62 Adventist hospitals located in the United
States.
Adventists operate 6,709 schools, 99 colleges and
universities, 39 training institutes, with a total enrollment of
1,254,179 students worldwide.
There are 1,020 Adventist schools in the United States.
I am particularly proud that Seventh-day Adventist healthcare
provides critical treatment in some of the world's most impoverished
regions. For example, Adventist hospitals and clinics provide care for
over 800,000 HIV/AIDS sufferers in sub-Saharan Africa each year.\2\
Further, in many areas of the world, Adventist schools provide the only
accessible education for children from disadvantaged families.
This practical ministry of healing and teaching is the outworking
of our faith commitment that has at its core a trust in the saving
grace of our Lord, Jesus Christ. As part of this commitment, Seventh-
day Adventist Christians aspire to keep the Ten Commandments under the
grace of Christ. This includes resting from secular work on the seventh
day of the week as required by God in the Ten Commandments.\3\
While there is debate within the Christian community regarding
which day of the week to keep holy, and further if or how to keep the
Sabbath holy, there is no debate that throughout church history some
Christians have continued to keep the Sabbath day holy on the seventh
day of the week (Saturday). Further, there is no debate that the
Seventh-day Adventist commitment to setting aside the Sabbath to
worship God is based on a sincerely held religious belief.
Today there is significant discussion over if and how the Ten
Commandments should be displayed in government buildings. As important
as these debates may be, a much more important question is how people
are treated when they actually keep the Ten Commandments.
Sadly, the experience of Seventh-day Adventist Christians in recent
years indicates an increased hostility to accommodating Sabbath
observance. Indeed, the rise in hostility to accommodating the
sincerely held religious beliefs of American workers is not limited to
Seventh-day Adventist Christians, but rather falls across the faith
spectrum. We know this both from reporting done by the various faith
communities, and from statistics kept by the United States Equal
Employment Opportunity Commission (EEOC) that will be discussed in the
next section of this testimony.
I co-chair a coalition of 49 national religious organizations who
have come together in support of WRFA. A full list of the coalition
members is provided as Exhibit A to this testimony. It is rare that
entities with such diverse theological views and public policy
priorities agree on any given piece of legislation. Indeed, at this
time there may well be no other issue that shares such deep and broad
multi-faith support. The increase in hostility to religion in the
American workplace has brought this disparate group together to support
a vital improvement in the law to protect the religious freedom of
America's workers.
Deficiency in the Current Legal Standard
Title VII of the U.S. Civil Rights Act of 1964 as amended in 1972
requires employers to ``reasonably'' accommodate the religious
practices of their employees unless, by so doing, the employer would
incur an ``undue hardship on the conduct of the employer's business.''
\4\ The Act itself does not define the terms ``reasonably accommodate''
and ``undue hardship,'' and thus it was the role of the courts to
provide clarification.
With scant legislative history to build upon, the Supreme Court
found that undue hardship means anything above a de minimis cost or
inconvenience.\5\ By so doing, the Court greatly reduced the impact of
the accommodation requirement.\6\
Further, there is a split among federal courts on the definition of
``reasonable'' accommodation. Some Circuits have held that in order to
be considered a reasonable accommodation for the purposes of Title VII,
the accommodation must eliminate the conflict between the religious
practice in question and the employer's requirement. The 8th Circuit,
on the other hand, recently held that an employer may ``reasonably
accommodate'' by an offer to only partially accommodate the religious
practices of employees.\7\
Thus, under the current legal standard, an employee in some
jurisdictions faces two prohibitive barriers to successfully bringing a
Title VII accommodation claim: First, if an employer offers a partial
accommodation the court may hold the offer is a ``reasonable''
accommodation. In this case, the employee loses, whether or not the
employer could have offered an accommodation that removed the conflict
entirely. But employers also get a second bite of the apple. Even when
a court finds an offer of partial accommodation does not meet the Title
VII threshold, an employer wins if he can show that accommodating an
employee's sincerely held religious beliefs would result in anything
above the most minimal inconvenience.
For employers unwilling to respect the religious diversity of the
American workforce, the weakness of the current standard provides a
two-pronged gift of legal impunity.
The weakness in the current law created a growing problem of
religious discrimination in the American workplace. The U.S. Equal
Employment Opportunity Commission reports that claims involving
religious discrimination in the workplace increased 83% between 1993
and 2006.\8\ In contrast, racial discrimination claims declined by 8%
during the same period, and other major categories of claims have held
roughly steady or declined.\9\
Thus, the rise in religious discrimination claims is not an
artifact of an increasingly litigious society. Rather, the rise in
religious discrimination claims while other major classes of
discrimination have remained level or falling, indicates a substantive
growth in intolerance of religion in the American workplace. This is
particularly perplexing as the rise comes at a time when many American
employers have implemented programs and policies to advance the
acceptance of diversity in the workplace.
Four primary reasons have been advanced to explain the increase in
religious discrimination.
First, the economy increasingly operates on a 24-hour, 7-
day-a-week schedule. This schedule necessarily conflicts with people of
faith who celebrate particular holy days, whether it be a weekly
Sabbath or annual holy days.
Second, due largely to changes in immigration patterns, we
are an increasingly religiously diverse society, and our religious
diversity now exists in parts of the nation that were largely
religiously homogenous up until relatively recent times. In the case of
religious practice, unfamiliarity may breed contempt or at least
intolerance. Intolerance towards non-Western religions may be
exacerbated by the overlap between religious practice and race,
ethnicity and national origin.
Third, the number of religious discrimination claims saw
their largest increase after 9/11 when Muslim and Sikh Americans
reported a sharp spike in demands to remove any garb or grooming that
would indicate their faith affiliation. Unfortunately, the level of
claims reached after 9/11 has not subsided in the years subsequent.\10\
Fourth, America may be becoming an increasingly
materialistic society, in which our family life, our environment, and
even our spirituality are becoming subordinated to our mercantile
drive.
Whatever the factors behind the meteoric rise in religious
discrimination claims, the impact on individuals cannot be overstated.
To lose a job does not merely mean losing an income. As one worker put
it: ``I have been through a divorce, I've buried both my parents, but
nothing has been as painful as losing my job, because without work,
I've lost my independence.'' Another stated: ``when I lost my job, I
didn't just lose an income, I lost my self esteem, I lost my health
insurance, I lost my ability to support my children, and I lost my
dreams.''
WRFA Addresses the Loopholes in the Current Law
The serious increase in religious discrimination claims, with the
accompanying personal hardship caused, requires us to close the current
loopholes in the law that permit employers to arbitrarily fire American
workers in retaliation for them following their faith commitment. WRFA
is a simple piece of legislation that has two central provisions:
The first provision defines the meaning of ``undue hardship'' in
Title VII as an accommodation that would require significant difficulty
or expense.\11\ By clarifying the meaning of ``undue hardship,'' WRFA
increases the protection from the current de minimis standard that
provides virtually no protection to American workers, to a legal
standard that provides moderate incentive to work out an accommodation.
The second central provision of WRFA states that an accommodation
of religious practice is not a ``reasonable accommodation'' unless it
removes the conflict between the religious practice and the work
requirements.\12\
It is vital to understand how these two provisions work together.
For an accommodation to be considered reasonable, post-WRFA, it must
eliminate the conflict between the employer's requirements and the
employee's religious practice. Thus, for example, an accommodation that
would offer a Seventh-day Adventist Christian employee two Saturdays
off every month, would not qualify as a reasonable accommodation as it
would not remove the conflict. This does not mean, however, that the
Adventist employee would prevail in her claim.
Rather, once the accommodation options available to remove the
conflict are determined, the court will then analyze whether the
employer can implement the reasonable accommodation without incurring a
significant difficulty or expense. If the employer can show that
removing the conflict cannot be done without incurring a significant
difficulty or expense, the employer wins.
In practice, the vast majority of accommodation issues are handled
informally in the workplace. The new WRFA standard provides an
incentive for reticent employers to seriously explore whether they can
accommodate the needs of America's religiously diverse workforce. In
the overwhelming majority of cases, accommodations can be worked out
with little fuss if there is a willingness--and incentive--on both
sides to do so. The employee always has an incentive, as her job is on
the line. WRFA provides the necessary incentive to recalcitrant
employers to search for an accommodation in good faith.
Objections to WRFA
There are two principle objections to providing protection for
people of faith in the workplace.
First, there are concerns that protection for people of
faith will increase litigation, and particularly litigation involving
sham religious claims.
Second, there is concern that protecting American workers
will burden third parties.
WRFA Will Reduce, Not Increase, Litigation
WRFA will reduce litigation for three reasons. First, it eliminates
the current incentive for recalcitrant employers to refuse to explore
accommodation options. Second, it does not change the current financial
disincentive for attorneys from the private bar to represent victims.
Third, it does not eliminate the legal and financial disincentive to
bring sham claims. The experience in New York State bears out the fact
that religious discrimination claims drop after the implementation of
the WRFA standard.
WRFA Eliminates Incentive to Arbitrarily Refuse Accommodation
Experts in the area of employment law agree that one of the
contributing factors to the dramatic rise in religious discrimination
claims at the federal level is the weakness of the accommodation
provisions as currently understood. Mitch Tyner, who managed more than
200 Sabbath accommodation cases\13\ during his career in the general
counsel's office at the headquarters of the Seventh-day Adventist
Church, states ``a contributing factor to the dramatic rise in
religious discrimination claims at the federal level in recent years is
the weakness of current federal law.'' Todd McFarland, associate
general counsel at the headquarters of the Seventh-day Adventist Church
states: ``Most of the claims can easily be resolved when there is a
will on both sides. The weakness in federal law, however, provides an
incentive for recalcitrant employers to hold out rather than working
constructively to find a solution. They know that in the remote chance
a claim is litigated, the employer holds all the cards.''
While there is relatively little incentive for a recalcitrant
employer to accommodate the religious beliefs of their employees under
current law, this does not deter people of faith in the workplace
asserting their rights. This is because people of strong religious
conviction are committed to following their conscience. In the words of
the Apostles, they believe ``we must obey God rather than men.'' \14\
As a result, the remote chance of prevailing under current law does not
reduce the number of claims asserted. Rather, the law encourages
recalcitrant employers to refuse accommodation, while having little
impact on the willingness of the faithful to follow their convictions.
These two forces combine to increase the number of claims under the
current weak legal standard.
WRFA provides an incentive to both employers and employees to work
out an accommodation if it is possible. Although the rise is religious
discrimination claims is alarming, religious intolerance in the
workplace remains the experience of a minority of employees indicating
that the majority of America's employers value the religious diversity
of their workforce and already work out accommodation. WRFA will
provide an added incentive to recalcitrant employers to do the right
thing before a case results in litigation. WRFA is written to provide
additional clarity and thereby reduce misunderstandings. In addition,
as discussed below, the economics of bringing religious accommodation
cases discourage litigation and virtually eliminates sham religious
claims.
WRFA Doesn't Eliminate Financial Disincentive for Bringing Claims
There are significant financial disincentives to bringing religious
accommodation cases and these will not change after WRFA is enacted.
Damages in accommodation cases tend to consist of lost wages, which are
frequently modest because the workers involved are typically on the low
end of the wage scale. As a result, finding attorneys willing to bring
these cases can be difficult, and it is highly unlikely an attorney
would be willing to invest the time and effort to bring a case
involving a sham claim. In addition, while courts do not examine the
validity of religious beliefs themselves, they do examine the sincerity
of the individual's claim.\15\
To date, critics of WRFA have not been able to identify a single
sham religion claim that has succeeded under Title VII or its state
equivalents during the 35 years the religious accommodation requirement
has been in place. The lack of financial incentive to bring a sham
claim, combined with the court's power to investigate whether a claimed
religious belief is indeed sincerely held, likely explains the dearth
of examples. Sham claims are not a factor in accommodation claims to
date, and there is nothing in WRFA that would change this reality.
An example helps to illustrate the financial disincentives of
brining workplace accommodation cases. If an employee earns $20,000 per
annum, and is fired by an employer who refuses to accommodate her
religious convictions, and if that employee is out of work for an
entire quarter, the damages involved in the case are only $5,000. The
expense of going through the administrative process and then litigation
seldom justifies the damages involved. It is not surprising that many
Title VII accommodation cases brought today are brought by religious
entities attempting to vindicate a principle, rather than by attorneys
in the private bar. The financial disincentive involved in bringing
these cases will not change post WRFA.
Accommodation Claims in New York Dropped Dramatically Post WRFA
If there were any doubts at all about the impact of WRFA, the
experience of New York State addresses them. Since adopting the WRFA
standard, religious discrimination claims have been lower in four out
of five years.\16\
There is no reason to believe the passage of WRFA will increase the
number of religious discrimination claims or encourage sham claims.
Rather, WRFA will reduce the number of claims as it provides an
incentive to work out commonsense accommodations. This is the
experience in New York State and it will be the experience nationwide.
WRFA Will Advance Civil Rights, Not Harm Them
It is important to remember when discussing the civil rights impact
of WRFA that religious liberty is our first civil right. The Pilgrims
fled from Britain to the Netherlands, and from the Netherlands to
America in order to experience religious freedom. Roger Williams left
Massachusetts to found Rhode Island in order to experience religious
freedom. The first provisions in the First Amendment to our
Constitution are designed to protect religious freedom. And many
Americans can trace our roots back to a family member who fled to the
United States to escape religious intolerance. Ensuring that American
workers are not arbitrarily forced to choose between their livelihood
and their faith is a vital step forward to advancing our core civil
right of religious freedom.
Critics of WRFA have raised emotive objections but lack evidence to
support them. Specifically, they claim WRFA will privilege harassment
and the denial of reproductive healthcare services. On March 20th,
2007, the ACLU circulated a letter opposing WRFA. In the letter, the
ACLU referred to a miniscule minority of cases brought under Title VII
in the last three decades that involved emotive claims. In every case,
the plaintiff lost. There is no rational basis to believe the outcome
would be any different post-WRFA. Despite this, the ACLU urges Congress
to oppose WRFA because ``Congress has no assurance that courts will
continue to reject claims that could cause important harm.'' The ACLU
is wrong. Congress has every reason to believe that claims that would
harm third parties will not succeed under WRFA. WRFA will not privilege
the denial of products or services to customers. We know this for two
reasons.
First, the bill's modest accommodation requirement is insufficient
to require employers to turn away customers, let alone compromise
patients' healthcare or public safety. Further, there is no rational
basis for concluding the bill will privilege the harassment of
employees. If there was, the minority faiths currently supporting the
bill would be the first to oppose it since our members are vulnerable
to religious based harassment in the workplace.
Second, New York State law that tracks the WRFA standard can be
observed. Critics of WRFA have not been unable to point to a single
incidence in which the NY State law has been interpreted to privilege
employees denying customers/patients services or products in a timely
manner. Nor have they found a single case in New York where WRFA was
interpreted to privilege harassment. It is incumbent on those making
remarkable claims to back those claims up with solid evidence. Critics
of WRFA have been unable to do so. As such, while the emotive scenarios
presented by critics of WRFA may elicit fear, it is an irrational fear.
Opponents of virtually every piece of legislation presented in
Congress create a parade of horribles to discourage its passage. Rather
than succumb to irrational fear, we must keep in mind the reality of
WRFA's modest accommodation standard and the experience at the state
level. In the case of WRFA, we have a serious, growing, well documented
violation of civil rights occurring. Against this reality, critics
parade the most speculative negative outcomes of its passage without a
single case to back up their conclusion that WRFA will result in their
outcomes. Between the facts presented by the supporters of WRFA, and
the emotive fiction of its adversaries, the choice is clear.
Indeed, it is not only the diverse coalition supporting WRFA that
rejects the critics' parade of horribles. Governor Eliot Spitzer wrote
the following critique of the ACLU's efforts to defeat WRFA when he was
New York Attorney General:
``I have the utmost respect for the ACLU, but on this issue they
are simply wrong. New York's law has not resulted in the infringement
of the rights of others, or in the additional litigation the ACLU
predicts will occur if WRFA is enacted. Nor has it been burdensome on
business. Rather, it strikes the correct balance between accommodating
individual liberty and the needs of businesses and the delivery of
services. So does WRFA.'' \17\
Despite the lack of evidence for the critics' objections to WRFA,
the coalition supporting WRFA is not opposed to inserting language into
the bill that specifically indicates the WRFA standard is not to be
interpreted to require accommodations that would cause harm to third
parties--whether they be coworkers or customers. The ACLU has rejected
this offer to date, preferring to insist on creating a legal standard
that would provide a higher level of protection to selected religious
practices they find innocuous and a lower level of protection for all
other practices. We believe this approach to be both unjust on its
face, and possibly unconstitutional.
Restricted Bill is Unjust & Creates Constitutional Questions
The ACLU's proposed a restricted bill would provide the WRFA
standard to a limited set of religious practices which the ACLU
selects, while leaving all other religious practices unprotected by
WRFA. The restricted approach strikes at the heart of indivisible
freedoms because it aims to provide one set of religious practices
preferential treatment under the law vis-a-vis all other religious
practices.
Specifically, the ACLU proposes to provide WRFA protection to
requests to accommodate religious holy day, garb and grooming
requirements. This limited bill would exclude all other religious
practices from coverage. Among the wide range of religious practices
that would be excluded under the ACLU restricted bill are: \18\
A Jehovah's Witness employee who requests to opt out of
raising the flag and pledging allegiance at work;
A Methodist attorney who requests accommodation not to
represent tobacco interests;
A Quaker (Society of Friends) employee who requests to be
transferred to non-military related accounts;
An Orthodox Jewish woman who requests permission not to
shake the hands of male customers;
A Hindu employee who requests permission not to greet
guests with the phrase ``Merry Christmas;''
A Christian employee who requests to be assigned to work
that does not involve embryonic research;
A Muslim hospital employee who requests to be exempted
from duty in which she would be present when a member of the opposite
sex is unclothed;
A Christian webpage developer who asks to be reassigned
from a pornographic website development project;
A Muslim truck driver who requests to be assigned to
routes that do not involve delivering alcoholic beverages.
These are just a few of the uncovered religious claims, and do not
include claims that arise from indigenous faiths, many major Eastern
religions and the wide variety of claims arising from the diverse
branches of Christianity. To understand the weakness of the restricted
approach, it is worth considering sample claims post-passage of the
ACLU's restricted WRFA:
Post-passage of a restricted WRFA, if an Evangelical Christian
delivery driver requests her employer to accommodate her sincerely held
religious conviction to attend church on Sunday, her claim would be
analyzed under the WRFA significant difficulty or expense standard. If
a Muslim delivery driver working for the same company asked the same
employer to accommodate her sincerely held religious conviction that
requires her not to delivery alcoholic beverages, her claim would be
analyzed under the existing de minimis difficulty or expense standard.
As such, the Muslim employee would be much more likely to lose even if
the two accommodation requests presented precisely the same challenge
to accommodate. It is difficult to understand how anyone could believe
such disparate treatment is a just outcome.
Further, it is unclear whether such disparate treatment could
withstand constitutional scrutiny under either the Equal Protection or
the Establishment Clauses.
In defense of their restricted proposal, critics note that the
religious practices covered constitute the majority of claims made in
reported Title VII cases over the past three decades. This defense is
faulted in two ways.
First, a bill that protects the majority of claims is hardly
justification for disfavoring minority religious practices.
Second, it assumes that future accommodation claims will mirror the
past. This is a deeply faulted assumption. America's religious
demographics are changing dramatically. As immigrants from Asia,
Africa, the Pacific and other areas of the world come to the United
States, they bring their religious practices with them. It is very
likely that prospectively, we will see far more claims from these faith
communities as they become established in America. We cannot afford to
exclude religious practices from protection simply because they were
not prevalent in the U.S. during the 70s and 80s. Indeed, as we go
forward, newer faith communities are likely to need the protection of
WRFA at least as much--if not more than--established communities.
Disparate treatment is something the ACLU has stood against in the
past on issues ranging from free speech to religious liberty. Sadly,
they have abandoned their core values and in the process are acting in
a manner counter productive to the liberties they claim to protect.
Criticism of WRFA is unjustified by the facts, and the proposed
``solution'' is deeply unjust and likely unconstitutional.
Conclusion
Losing employment is not an insignificant event. Loss of a job can
have the most dire impact on a family emotionally, financially, and in
their relationships. In recognition of this, our laws have been crafted
carefully to protect the disabled, for example, from dismissal without
efforts being made to accommodate their needs. And this Congress passed
the Employment Non-Discrimination Act to protect gay, lesbian and
bisexual employees. It is not too much to ask from a nation founded on
the principles of religious freedom for people of faith to be accorded
the same respect.
Rather than succumb to the irrational objections of WRFA critics.
It is vital that Congress address this very real, well documented
problem. Americans from all religious faiths need protection. WRFA
provides a modest level of protection to ensure that American workers
are no longer arbitrarily forced to choose between their faith and
their livelihood.
Today, on behalf of the Seventh-day Adventist Church and on behalf
of the religious community writ large, I urge each member of the
subcommittee to support WRFA's passage through the House of
Representatives and into law. Enough American workers have been
humiliated and marginalized for no crime other than remaining faithful
to their understanding of God's requirements. Our national values and
our common humanity dictate that we provide the modest, commonsense
protection encapsulated in WRFA--and that we delay no longer.
endnotes
\1\ James Standish is director of legislative affairs for the world
headquarters of the Seventh-day Adventist Church. He earned his law
degree, cum laude, from Georgetown University, his MBA from the
University of Virginia, and his BBA from Newbold College, England.
\2\ There are 29 Seventh-day Adventist hospitals in sub-Saharan
Africa, and these hospitals are complemented by a number of Adventist
clinics and dispensaries. In total, these facilities accounted for
62,912 inpatient admissions, and 1,601,950 outpatient visits in 2004.
More than 50% of the patients served in these facilities are HIV
positive.
\3\ Exodus 20:8--11 (NKJV): ``Remember the Sabbath day, to keep it
holy. Six days you shall labor and do all your work, but the seventh
day is the Sabbath of the LORD your God. In it you shall do no work:
you, nor your son, nor your daughter, nor your male servant, nor your
female servant, nor your cattle, nor your stranger who is within your
gates. For in six days the LORD made the heavens and the earth, the
sea, and all that is in them, and rested the seventh day. Therefore the
LORD blessed the Sabbath day and hallowed it.''
\4\ 42 U.S.C. Sec. 2000e(j). (Employers have a duty to accommodate
an employee's religious practices as long as they can ``reasonably
accommodate'' the practices and the accommodation does not cause
``undue hardship'' on the employer's business.)
\5\ Trans World Airlines, Inc v. Hardison, 432 U.S. 63, 84 (1977).
(Accommodation of religious beliefs requiring more than a de minimis
cost to the employer normally results in ``undue hardship'' and
therefore is not required by current law.)
\6\ For more on the history of the accommodation provision of Title
VII, please see Exhibit B at the conclusion of this testimony.
\7\ Sturgill v. UPS, 2008 WL 123945 (8th Cir. Jan. 15, 2008)
(``What is reasonable depends on the totality of the circumstances and
therefore might, or might not, require elimination of a particular,
fact-specific conflict.'' Slip Opinion at 6.).
\8\ Exhibit C at the conclusion of this testimony contains a year-
by-year analysis of religious and race based discrimination receipts
received by the U.S. EEO.
\9\ See Exhibit C.
\10\ See Exhibit C.
\11\ Workplace Religious Freedom Act, Section 2 (``* * * the term
`undue hardship' means an accommodation requiring significant
difficulty or expense.'').
\12\ Workplace Religious Freedom Act, Section 2 ( ``* * * for an
accommodation to be considered to be reasonable, the accommodation
shall remove the conflict between employment requirements and the
religious observance or practice of the employee.'').
\13\ A majority of cases did not go to litigation.
\14\ Acts 5:29 (NIV).
\15\ See, e.g., United States v. Seeger, 380 U.S. 163 (1965).
\16\ New York State Division of Human Rights
\17\ Eliot Spitzer, ``Defend the Civil Right to Freedom of Religion
for America's Workers,'' The Forward, June 25, 1990, at 1, 7. http://
www.forward.com/main/article.php?ref= spitzer200406241125
\18\ List compiled by the Coalition for Freedom of Religion in the
Workplace.
______
Chairman Andrews. Mr. Standish, thank you. And thanks for
showing us that picture, too. That made us all----
Mr. Standish. Cannot resist.
Chairman Andrews. Before we go to Professor Norton, I
wanted to just comment that I know that our three scholarly
witnesses have made a tremendous contribution to this
discussion, and we appreciate that very, very much.
I will just pause for a moment after the last three
witnesses, and this is record that we would like the world to
see about the real meaning of religious diversity in our
country.
You know, this is a country that was founded a very long
time ago by people who worshipped under the rules of the Church
of England and people who worshipped under some religions that
followed Martin Luther and his views. That is sort of the only
folks that were here, other than the Native Americans, hundreds
of years ago.
And they derived a system that yielded today where we have
three people, very articulate, very passionate, very sincere,
from three very different religious traditions, each of which
is respected. We are having a debate today about how that
respect should be manifested in the law.
But for those who would doubt the country's true devotion
to religious diversity, I would like them to hear the three of
you just testify. I think it was moving. It was terrific, and
we are very glad that you were here.
Professor Norton?
STATEMENT OF HELEN NORTON, ASSOCIATE PROFESSOR OF LAW,
UNIVERSITY OF COLORADO
Ms. Norton. Thank you.
I hope to accomplish three objectives with my testimony
here today: first, to explain my support for H.R. 1431's
overarching goal of amending Title VII to provide greater
protections for workers' religious practices for the reasons
that the witnesses before me have already very eloquently
identified; second, however, also to note my concern that the
language as drafted may create significant conflicts with other
persons' important civil and reproductive rights; and then
finally, to suggest some possible approaches for resolving
those concerns.
As a number of witnesses have noted, as a result of the
Supreme Court's very broad interpretation of ``undue hardship''
under Title VII. employee requests for religious accommodation
are too often denied, even when they impose only modest costs,
and for this reason, amendment to Title VII to restore
Congress's original intent to create a meaningful right to
reasonable accommodation is long overdue.
But while I fully support H.R. 1431's underlying purpose in
this regard, I note my significant concern that the proposal,
as currently drafted, may lead to new and different outcomes in
cases where requested accommodations conflict with other
persons' important civil and reproductive rights. Although the
majority of requested accommodations will not pose difficulties
of this sort, the Title VII experience to date indicates that
some requested accommodations will conflict with coworkers'
antidiscrimination interests or patients' health care needs.
And these are very difficult issues because they involve
direct clashes between interests that are protected by Title
VII as well as under other constitutional and legal rights.
These concerns are especially acute given that Congress is
considering amending one of our nation's most important civil
rights laws.
And to be sure, the plaintiffs' beliefs in these cases are
no less sincere and deeply felt than in any others. These cases
are different and difficult instead because of the requested
accommodations' effect on third parties' civil rights,
religious liberties, reproductive rights, or other important
health care needs.
Under current law, for example, lower courts have
consistently held that employers are not required to
accommodate health care workers' religiously motivated requests
to decline to dispense contraceptives or provide other health
care services for religious reasons when those requests result
in delay in or disruption to the delivery of health care
services.
Similarly, under current law, lower courts have
consistently concluded that police officers' religiously
motivated requests to decline certain assignments, such as
enforcing the law with respect to disruptions at reproductive
health care clinics, pose an undue hardship.
Nor have lower courts under the current Title VII standard
required employers to accommodate workers whose religious
beliefs compel them to urge the conversion of those with
contrary beliefs or behaviors in a way that may not only offend
the beliefs of others, but may also undermine an employer's
antidiscrimination policies, as is the case where a worker
seeks the accommodation being permitted to condemn
homosexuality as immoral to coworkers or to patients, despite
an employer's antidiscrimination policy.
Each of these cases was decided under the current Title VII
standard. Without clarification, we cannot be confident that
the substantial changes proposed by H.R. 1431 would not alter
the outcome in these cases. Several factors create this
uncertainty
First, H.R. 1431 proposes a new and more rigorous
understanding of undue hardship for Title VII purposes, drawing
largely from the ADA's narrower definition of undue hardship.
The ADA's undue hardship standard reflects Congress's judgment
that the need to expand employment opportunities for workers
with disabilities by providing accessible facilities and other
accommodations justifies the imposition of some economic cost
on employers so long as that cost falls short of significant
difficulty and expense.
But some of the religious accommodations at issue here
impose costs most directly on other coworkers or patients and
may or may not impose monetary costs on employers. As a result,
without clarification, it remains uncertain how the ADA
understanding of undue hardship will apply to conflicts with
other persons' civil rights or health care needs.
Adding to this uncertainty is the fact that while H.R. 1431
draws from the ADA factors, it does not track them precisely,
and, if anything, it appears to focus even more narrowly on the
employer's monetary costs as the measure of undue hardship.
So, again, without clarification, these changes may well
result in different outcomes in cases involving conflicts with
other workers' civil rights or patients' important health care
needs.
I will conclude by suggesting very briefly two possible
approaches to resolving these concerns. First, H.R. 1431's
definition of ``undue hardship'' could be amended to expressly
make clear that accommodations that impose an undue hardship
include practices that conflict with employers' legally
mandated or voluntarily adopted antidiscrimination requirements
or that delay or disrupt the delivery of health care services.
Alternatively, Congress could require employers to provide
the most frequently requested accommodations--and those that do
not create conflicts of this sort--unless it can show that the
accommodation would pose an undue hardship as rigorously
defined under H.R. 1431, and those accommodations include time
off or scheduling changes to observe the Sabbath, as Ms.
Goldstein described, or requests for departures from uniform
appearance standards with respect to religious apparel or
grooming, as Ms. Al-Suwaij described.
In short, while I fully agree that Congress should amend
Title VII to expand the circumstances under which employers
must accommodate employees' religious practices, it should not
do so in a way that conflicts with others' civil and
reproductive rights.
Thank you.
[The statement of Ms. Norton follows:]
Prepared Statement of Helen Norton, Associate Professor, University of
Colorado School of Law
Thank you for the opportunity to testify here today. My testimony
draws from my work as a law professor teaching and writing about
constitutional law and employment discrimination issues, as well as my
experience as a Deputy Assistant Attorney General for Civil Rights in
the Department of Justice during the Clinton Administration, where my
duties included supervising the Civil Rights Division's Title VII
enforcement efforts.
I hope to accomplish three objectives with my testimony here today:
1) to explain my support for H.R. 1431's overarching goal of amending
Title VII to provide greater protections for workers' religious
practices; 2) to express concern, however, that the language as drafted
may create significant conflicts with other persons' important civil
and reproductive rights; and 3) to suggest some possible approaches for
resolving those concerns.
As originally enacted in 1964, Title VII simply barred employers
from firing, refusing to hire, or otherwise taking adverse action
against an employee because of his or her religion--as well as his or
her race, color, sex, or national origin. But it soon became clear that
more was needed to ensure equal employment opportunity for workers on
the basis of religion, and Congress thus amended Title VII in 1972 to
require expressly that employers reasonably accommodate an employee's
religious practice unless the accommodation would pose an undue
hardship to the employer's business.
Indeed, Congress amended Title VII in 1972 in direct response to
courts' refusal to require employers to accommodate workers' scheduling
requests that would allow them to observe their Sabbath. Senator
Randolph, the sponsor of the amendment, highlighted the plight of
workers ``whose religious practices rigidly require them to abstain
from work in the nature of hire on particular days.'' \1\ In
particular, he explained the need to correct lower court decisions
upholding the firing of workers who could not work on the Sabbath.\2\
Shortly after the amendment's enactment, however, in a case
involving a worker's request for a shift change to accommodate his
observance of the Sabbath, the Supreme Court defined the term ``undue
hardship'' to mean that an employer is not required to incur more than
``a de minimis cost'' when accommodating an employee's religious
practice.\3\ As a practical matter, this interpretation robbed the 1972
amendment of much of its impact: under this standard, an employer need
show very little cost to avoid accommodating an employee's observance
of the Sabbath or other religious practice.\4\
As a result of the Court's very broad interpretation of undue
hardship, employee requests for religious accommodations are too often
denied even if they impose only modest costs. An amendment to Title VII
to restore Congress' original intent to create a meaningful right to
reasonable accommodation is thus long overdue.
But while I fully support H.R. 1431's underlying purpose in this
regard, I note my significant concern that the proposal, as currently
drafted, may lead to new and different outcomes in cases where
requested accommodations conflict with other persons' important civil
and reproductive rights. Although the majority of requested
accommodations--including, but not limited to, requests for shift
changes or leave for religious observances, or departures from
workplace appearance policies to accommodate religious practices with
respect to apparel and grooming \5\--will not pose difficulties of this
sort, the Title VII experience to date indicates that some requested
accommodations will conflict with co-workers' antidiscrimination
interests or patients' health care needs.
Justice Thurgood Marshall wrote a powerful dissent: Today's
decision deals a fatal blow to all efforts under Title VII to
accommodate work requirements to religious practices. The Court holds,
in essence, that although the EEOC regulations and the Act state that
an employer must make reasonable adjustments in his work demands to
take account of religious observances, the regulations and Act do not
really mean what they say. An employer, the Court concludes, need not
grant even the most minor special privilege to religious observers to
enable them to follow their faith. As a question of social policy, this
result is deeply troubling, for a society that truly values religious
pluralism cannot compel adherents of minority religions to make the
cruel choice of surrendering their religion of their job. And as a
matter of law today's result is intolerable, for the Court adopts the
very position that Congress rejected in 1972, as if we were free to
disregard congressional choices that a majority of this Court thinks
unwise. Id. at 86-87 (Marshall, J., dissenting).
These are very difficult cases because they involve direct clashes
between interests that are protected by Title VII and other
constitutional and legal rights. These concerns are especially acute
given that Congress is considering amendments to one of our nation's
most important civil rights laws, and they thus deserve very careful
attention. To be sure, the plaintiffs' religious beliefs in these cases
are no less sincere and deeply felt than those in any others. These
cases are different instead because of the requested accommodations'
effect on third parties' civil rights, religious liberties,
reproductive rights, and other important health care needs.\6\
And those effects can be extremely significant. Examples include
patients who experience delays in or disruptions to health care
services if health care workers decline for religious reasons to
dispense contraceptives, decline to assist in performing sterilization
procedures, or decline to counsel cancer patients seeking information
about harvesting eggs or sperm. Other examples include police officers
who, for religious reasons, decline to enforce laws regarding civil
disturbances at reproductive health care clinics, or workers in a
variety of jobs whose religious beliefs compel them to urge the
religious conversion of those with contrary beliefs or behaviors in a
way that may not only offend the beliefs of others, but also undermine
an employer's antidiscrimination policies.
Under the current Title VII interpretation of undue hardship,
employers need not provide accommodations that create conflicts of this
type when they impose more than a de minimis cost. But without
clarification, we cannot be confident that the substantial changes
proposed by H.R. 1431 would not alter the outcome in these cases.
Under current law, for example, lower courts have consistently held
that a health care worker's religiously-motivated request to decline to
dispense contraceptives or to provide other health care services poses
an undue hardship when it results in delay or disruption to health care
services, even when the employee argues that the accommodation is the
only one that can remove the conflict with his or her religious
beliefs.\7\ For instance, in Grant v. Fairview Hospital,\8\ an
ultrasound technician for a women's health clinic held religious
beliefs that required him to counsel pregnant women against having an
abortion if he became aware that they were contemplating the
possibility. His employer agreed that the employee did not have to
perform ultrasound examinations on women contemplating abortion, and
proposed that he leave the room once he found that a patient was
considering that possibility. It refused, however, to allow him to
counsel such patients against having abortions. Even though the
employer's proposal did not eliminate the conflict entirely--the
plaintiff felt religiously compelled to provide counseling to women who
told him they were considering abortions--the court found that the
accommodation was reasonable because it reflected the employer's good-
faith negotiation and compromise that resulted in a change that
considered both employee and employer concerns.
Others courts have reached similar conclusions under current law.
In Noesen v. Medical Staffing Network/Wal-Mart,\9\ for example, in
response to the plaintiff pharmacist's refusal to dispense
contraceptives for religious reasons, the employer ensured that another
pharmacist remained available during the plaintiff's shift to fill
prescriptions and answer customers' questions about birth control. The
court ruled that the employer satisfied its duty of reasonable
accommodation by excusing the plaintiff from filling contraceptive
prescriptions, even though the plaintiff argued that the only way to
remove the conflict with his religious beliefs would be to relieve him
of all counter and telephone duties that might require him to interact
with a customer seeking birth control.
Similarly, under current law lower courts have consistently
concluded that police officers' religiously-motivated requests to
decline certain assignments--such as enforcing the law with respect to
disturbances and disruptions at reproductive health care clinics--pose
an undue hardship to the law enforcement mission. In Rodriguez v. City
of Chicago, for example, the plaintiff police officer declined an
assignment to provide security at abortion clinics for religious
reasons. The Seventh Circuit found that the employer had satisfied its
obligation to provide a reasonable accommodation through the
availability of a transfer--without any loss in pay or benefits--to
another district without an abortion clinic. The court held that the
employer was not required to remove the conflict by providing the
employee's preferred accommodation, which was to remain in his current
district while declining clinic duty.\10\ In a concurring opinion,
Judge Posner agreed that this employer had provided a reasonable
accommodation, but noted that he preferred a rule making clear under
Title VII that a request by a law enforcement officer to refuse an
assignment always poses an undue hardship, because of the ``loss of
public confidence in governmental protective services if the public
knows that its protectors are at liberty to pick and choose whom to
protect.'' The Seventh Circuit later adopted Judge Posner's view as a
matter of Title VII law in Endres v. Indiana State Police.\11\
Nor have lower courts, under the current Title VII standard,
required employers to accommodate workers whose religious beliefs
compel them to urge the religious conversion of those with contrary
beliefs or behaviors, in a way that may not only offend the beliefs of
others but also undermine an employer's antidiscrimination policies.
For example, in Peterson v. Hewlett-Packard, the Ninth Circuit declined
to require the employer to adopt the plaintiff's proposed accommodation
where the plaintiff contended that only way to remove the conflict
between Hewlett-Packard's diversity campaign and his religious beliefs
would be either to require HP to remove its posters (featuring a photo
of an HP employee above the caption ``Gay,'' along with a description
of the pictured employee's personal interests and the slogan
``Diversity is our Strength'') or to allow him to display his
concededly ``hurtful'' messages condemning homosexuality in hopes of
changing others' behavior.\12\
Each of these cases was decided under current Title VII law.
Without clarification, their outcome under H.R. 1431's proposed new
standard remains uncertain.
Several factors create this uncertainty. First, H.R. 1431 proposes
a new and more rigorous understanding of undue hardship for Title VII
purposes, drawing from the Americans with Disabilities Act's (ADA)
narrower definition of undue hardship to mean ``an action requiring
significant difficulty or expense.'' \13\ The ADA then identifies a
number of factors to be considered when determining whether a proposed
accommodation requires significant difficulty or expense; these factors
focus on the requested accommodation's net monetary cost to
employer.\14\ The ADA's undue hardship standard reflects Congress'
judgment that the need to expand employment opportunities for workers
with disabilities by providing accessible facilities and other
accommodations justifies the imposition of some economic cost on
employers so long as that cost falls short of significant difficulty
and expense.\15\ But some of the religious accommodations at issue here
impose costs most directly on other co-workers or patients and may or
may not impose monetary costs to employers. As a result, without
clarification, it remains uncertain how the ADA understanding of undue
hardship will apply to conflicts with other persons' civil rights or
health care needs.\16\
Adding to this uncertainty is the fact that while H.R. 1431 draws
from the ADA factors to be considered when determining undue hardship,
it does not track them precisely. If anything, H.R. 1431 appears to
focus even more narrowly on the employer's monetary costs as the
measure of undue hardship. For example, H.R. 1431 as proposed requires
consideration of ``the identifiable cost of the accommodation,
including the costs of loss of productivity and of retraining or hiring
employees or transferring employees from 1 facility to another.'' \17\
In contrast, the ADA more broadly requires consideration of ``the
nature and cost of the accommodation needed.'' \18\ Again, the effect
of these changes remains unclear when applied to accommodations that
conflict with third parties' civil and reproductive rights.
Adding further still to this uncertainty is H.R. 1431's provision
that:
For purposes of determining whether an employer has committed an
unlawful employment practice under this title by failing to provide a
reasonable accommodation to the religious observance or practice of an
employee, for an accommodation to be considered to be reasonable, the
accommodation shall remove the conflict between employment requirements
and the religious observance or practice of the employee.\19\
But the holdings in cases under current law involving conflicts
with third parties' civil and reproductive rights frequently rest on
courts' conclusion that an employer's accommodation need not completely
remove the conflict with the employee's religious beliefs to be
considered reasonable. Indeed, in many of these cases, the only way
truly to remove the conflict with the employee's sincerely-held
religious beliefs is for the employer to stop providing certain health
care services that the employee finds inconsistent with his faith or
for the employer to permit the employee to engage in religiously-
compelled witnessing or proselytizing activities regardless of the
effect on others' beliefs or the employer's antidiscrimination
policies. Again, without clarification, this change in the law may well
result in different outcomes in cases involving conflicts with other
workers' civil rights or patients' important health care needs.
There appear to be at least two possible approaches to resolving
these concerns. One possible solution would revise H.R. 1431's
definition of ``undue hardship'' to expressly provide that
accommodations that impose an undue hardship include practices that
conflict with employers' legally-mandated or voluntarily-adopted
antidiscrimination requirements or that delay or disrupt the delivery
of health care services.
Another approach might require an employer to accommodate the most
frequently-requested accommodations--and those that do not create
conflicts of the sort described above--unless it can show that the
accommodation would pose an undue hardship as rigorously defined under
H.R. 1431 as proposed. These accommodations include scheduling and
leave requests to observe the Sabbath or religious holidays, as well as
requests for departures from uniform appearance standards to
accommodate religious practices with respect to apparel and grooming.
Other types of accommodation requests would continue to receive the
protections available under Title VII's current standard--employers
are, and would continue to be, required to provide such accommodations
unless doing so poses more than a de minimis hardship.
In short, while I fully agree that Congress should amend Title VII
to expand the circumstances under which employers must accommodate
employees' religious practices, it should do so in a way that does not
conflict with others' civil and reproductive rights. Again, thank you
for the opportunity to testify here today. I look forward to your
questions.
endnotes
\1\ 118 Cong. Rec. at 705 (1972).
\2\ See id. at 705-06 (1972) (statement of Sen. Randolph)
(``Unfortunately, the courts have, in a sense, come down on both sides
of the issues. The Supreme Court of the United States, in a case
involving the observance of the Sabbath and job discrimination, divided
evenly on this question. This amendment is intended * * * to resolve by
legislation--and in a way that I think was originally intended by the
Civil Rights Act--that which the courts apparently have not
resolved.''); see also 118 Cong. Rec. 706-13 (1972) (reprinting two
lower court cases as examples of decisions to be reversed by the
proposed amendments:
Dewey v. Reynolds Metals Co., 429 F.2d 324 (6th Cir. 1970), aff'd
by an equally divided Court, 402 U.S. 689 (1971) (finding no Title VII
requirement that an employer accommodate employees' religious
observance and upholding the firing of an employee who declined to work
on Sundays for religious reasons) and Riley v. Bendix Corp., 330 F.
Supp. 583 (M.D. Fla. 1971) (same).
\3\ Trans World Airlines v. Hardison, 432 U.S. 63, 85 (1977) (``To
require TWA to bear more than a de minimis cost in order to give
Hardison Saturdays off is an undue hardship.'').
\4\ Indeed, according to Black's Law Dictionary, the term ``de
minimis'' means ``trifling,'' ``minimal,'' or ``so insignificant that a
court may overlook it in deciding a case or issue.'' BLACK'S LAW
DICTIONARY (Seventh Edition).
\5\ Justice Marshall's list in Hardison of the most common types of
accommodation requests remains largely accurate today: ``In some of the
reported cases, the rule in question has governed work attire; in other
cases it has required attendance at some religious functions; in still
other instances, it has compelled membership in a union; and in the
largest class of cases, it has concerned work schedules.'' 432 U.S. at
87.
\6\ Note too that these concerns arise only with respect to
requested accommodations--i.e., requests that an employer depart from
its religiously neutral policies to accommodate a religious practice,
observance, or other behavior. An employer may not fire, refuse to
hire, or otherwise target an employee for an adverse employment action
because of that employee's beliefs, no matter how unfamiliar or even
disagreeable the employer may consider those beliefs. See, e.g.,
Buonanno v. AT&T Broadband, 313 F. Supp. 2d 1069 (D. Colo. 2004)
(holding that Title VII does not permit employer to fire employee who
declined to sign diversity policy requiring him to affirm that he
``value[d]'' all differences when his religious beliefs held that some
behaviors and beliefs are sinful); Peterson v. Wilmur Communications,
Inc., 205 F. Supp. 2d 1014 (E.D. Wis. 2002) (holding that Title VII
does not permit employer to demote employee upon learning of employee's
religiously-motivated belief in white supremacy).
\7\ On the other hand, of course, if accommodating a health care
worker's request would not delay or disrupt the provision of health
care services, it would not pose an undue hardship.
\8\ 2004 WL 326694 (D. Minn. 2004).
\9\ 232 Fed. Appx. 581 (7th Cir. 2007); see also Shelton v.
University of Medicine & Dentistry of New Jersey, 223 F.3d 220 (3rd
Cir. 2000) (holding that the employer hospital satisfied its obligation
to provide a reasonable accommodation to a staff nurse whose religious
beliefs ``forbade her from participating directly or indirectly in
ending a life'' when it offered to transfer her to a position that did
not involve abortions or sterilizations).
\10\ 156 F.3d 771 (7th Cir. 1998); see also Parrott v. District of
Columbia, 1991 WL 126020 *3 (D.D.C. 1991) (``Title VII's guarantee of
de minimis accommodation does not contemplate the type of dispensation
Sergeant Parrott requests from the police force''--i.e., to be exempted
from enforcing law regarding civil disturbances and demonstrations at
abortion clinics).
\11\ 349 F.3d 922 (2003) (holding that the state police had no duty
to accommodate a police officer's request that he be allowed to refuse
assignment to a casino for religious reasons).
\12\ 358 F.3d 599, 606-08 (9th Cir. 2004).
\13\ 42 U.S.C. Sec. 12111(10) (A).
\14\ 42 U.S.C. Sec. 12111(10) (B) of the ADA identifies these
factors as follows: ``(i) the nature and cost of the accommodation
needed under this chapter; (ii) the overall financial resources of the
facility or facilities involved in the provision of the reasonable
accommodation; the number of persons employed at such facility; the
effect on expenses and resources, or the impact otherwise of such
accommodation upon the operation of the facility; (iii) the overall
financial resources of the covered entity; the overall size of the
business of a covered entity with respect to the number of its
employees; the number, type, and location of its facilities; and (iv)
the type of operation or operations of the covered entity, including
the composition, structure, and functions of the workforce of such
entity; the geographic separateness, administrative, or fiscal
relationship of the facility or facilities in question to the covered
entity.''
\15\ 42 U.S.C. Sec. 12111(9) of the ADA provides that ``[t]he term
`reasonable accommodation' may include--
(A) making existing facilities used by employees readily accessible
to and usable by individuals with disabilities; and
(B) job restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or modification of
equipment or devices, appropriate adjustment or modifications of
examinations, training materials or policies, the provision of
qualified readers or interpreters, and other similar accommodations for
individuals with disabilities.''
\16\ As written, H.R. 1431 creates a duty of reasonable
accommodation only with respect to employees or applicants for
employment who can perform the ``essential functions'' of the job with
or without reasonable accommodation, leaving employers free to argue
that the inability to perform certain duties for religious reasons
means that that employee cannot perform the job's essential functions.
But the bill goes on to provide that ``the ability to perform essential
functions'' should not be considered compromised by ``practices that
may have a temporary or tangential impact on the ability to perform job
functions.'' H.R. 1431, section 2(a). Without clarification, it is
difficult to predict with confidence the meaning of ``temporary or
tangential impact.'' For example, would it require accommodation of a
pharmacist's request to decline to dispense contraceptives if such
contraceptives constitute only a small percentage of the pharmacy's
sales, or a nurse's request to decline to assist in performing tubal
ligations or vasectomies if such surgeries constitute only a small
percentage of a hospital's health care services?
\17\ H.R. 1431, section 2(a). H.R. 1431 goes on to identify a
shorter and arguably narrower list of additional factors to be
considered in determining undue hardship for Title VII purposes as
compared to the ADA undue hardship factors listed above in note 14:
``(B) the overall financial resources and size of the employer
involved, relative to the number of its employees; and (C) for an
employer with multiple facilities, the geographic separateness or
administrative or fiscal relationship of the facilities.''
\18\ 42 U.S.C. Sec. 12111(10) (B) (i).
\19\ H.R. 1431, section 2(b) (emphasis added).
______
Chairman Andrews. Well, thank you, Professor.
And thank you, ladies and gentlemen, for an excellent
series of testimonies.
We are going to now go to questions.
I want to focus on one of the hypotheticals that Mr.
Standish raised, and I am going to embellish it a little bit.
Say, we have a trucking company that has 100 drivers, and the
trucking company serves any number of routes--to grocery
stores, to retail outlets, and to some liquor stores--and the
trucking company employs a devout Muslim who requests not to be
assigned to drive the routes delivering liquor for religious
reasons.
Mr. Gray, as you understand the present interpretation of
Title VII, if the employer denied that accommodation and the
employee sued, would the employee win or lose that suit to
force the accommodation?
Mr. Gray. I think your example, Mr. Chairman, would depend
on some further facts.
Chairman Andrews. What would you want to know?
Mr. Gray. I would want to know what other route drivers
would be available to pick up that route.
Chairman Andrews. All right. Let us say that there would be
at least five or 10 others who could do the same route without
any significant disruption.
Mr. Gray. I think with that, there is a significant chance
that that accommodation, I think, stands.
Chairman Andrews. Do you think it is clear that it does?
Mr. Gray. Well, I think that depends on the facts, and I
think it would take more facts than we have time to go into.
Chairman Andrews. Well, good lawyers can disagree. You are
one. I am probably not. My own interpretation, as I read the de
minimis standard, is the employee loses, and I think that is
what it says, and----
Mr. Gray. Well, I think, Mr. Chairman, if you look at
Hardeson and then look at the cases interpreting Hardeson--we
could take the Sturgill case that just came out from the Eighth
Circuit--it----
Chairman Andrews. The UPS driver?
Mr. Gray [continuing]. Is not as de minims--it may be a bad
choice of terms--not as small as the Hardeson case chose to
characterize it.
Chairman Andrews. But if go to one of the points Mr.
Standish made, there is a good chance that this truck driver
employee is going to need a contingency lawyer to bring his
claim, and with that degree of uncertainty about the outcome,
it is going to be very difficult to get representation.
I want to go to Professor Norton and ask her this question:
If we were to adopt one of your two alternatives to the bill
before the committee, which, as I understand it, would specify
a higher level of protection for scheduling issues and for
dress issues, appearance issues, would the plaintiff win under
your proposed alternative or not?
Ms. Norton. Your trucking plaintiff?
Chairman Andrews. Yes.
Ms. Norton. Right. Well, the first question is what is the
cost, and, as you pointed out, if the employer can identify
anything more than de minimis cost, minimal or trifling cost,
that employee is at risk of losing the case, which is one
reason you may want to go to a non-targeted approach.
Chairman Andrews. In other words, the short answer is you
do not know, but there is a pretty good risk the employee would
lose the case? Is that what you said?
Ms. Norton. Right, depending on what the answer is to what
the cost is.
Chairman Andrews. Let me go to another one of Mr.
Standish's hypotheticals.
First of all, do you agree, Mr. Standish, that under the
trucking-liquor example that the Muslim employee would lose
under present law?
Mr. Standish. I do. I am a lawyer myself, and I would love
to be the person handling the company side of that claim
because if you cannot come up with, you know, above a de
minimis customer inconvenience for just about anything, you are
just really not trying. If you went to a targeted approach,
though----
Chairman Andrews. How about this, though? How about an
Orthodox Jewish person goes to work in a Wal-Mart, and she is
assigned to be the Wal-Mart greeter, and she declines to shake
hands, because of her religious faith and religious tradition,
with people as they come in, and she says, ``Well, look, I will
work in the shoe department. I will work in the clothing
department, appliances, whatever, but I just do not want to be
the greeter because it does require me to shake people's
hands.''
Mr. Standish, do you think that she wins or loses that case
under present law?
Mr. Standish. I think that that, once again, could be a
close call depending on what their other staffing requirements
are and what her skills are.
Chairman Andrews. Wal-Marts typically have hundreds of
employees, and I would think that there would be plenty of
people to be the greeter.
Mr. Gray, do you think the plaintiff wins or loses that
case under present law?
Mr. Gray. Without sounding too much like a lawyer, Mr.
Chairman, I am not----
Chairman Andrews. Go ahead.
Mr. Gray [continuing]. Sure I want to comment on if that is
a particular case or with Wal-Mart in particular, but if I
took----
Chairman Andrews. Well, let us say a store that employs
greeters that has a big W in front of its name and----
[Laughter.]
Mr. Gray. Fair enough. I think it goes to the cost. I think
Professor Norton talked about it. The problem, actually, under
the proposed legislation is the current test, Mr. Chairman,
involves a balancing test, and what we are seeing in the work
place is the company and the employees often are getting it
done without having to go to plaintiffs' lawyers.
Chairman Andrews. But under Ms. McCarthy's bill, would not
the retailer who will go nameless have a burden of showing
there is some substantial cost, and I do not think they could
do that in a case where there are hundreds of other employees,
any of whom could be the greeter, and reassigning the woman in
question to another department where she did not have to shake
hands would be a pretty easy thing to do. Don't you think the
retailer would lose the case under Ms. McCarthy's bill?
Mr. Gray. Well, yes. I think under the bill, Mr. Chairman,
if you cannot point to an identifiable cost--that is a term
that I think is going to get us into a lot of trouble down the
line. Now the current standard, I think, gives a more give-and-
take and allows you to sort of delve into the facts.
Chairman Andrews. I agree with that, although I think a lot
of us think it is more take than give when it comes to
religious rights, which is why we feel strongly about this.
But I thank you very much. I appreciate all these good
lawyers answering these questions.
I recognize Mr. Kline for 5 minutes.
Mr. Kline. Thank you, Mr. Chairman. You are not going to
suck me into that today. Not today.
Except I would echo your comments about Ms. Goldstein and
the reason that she was so on point is because she was neither
a legislator nor a lawyer, and I would emphasize the latter was
the problem. But Chairman Andrews and I have this discussion an
awful lot.
I want to add to his comments to the three of you, if I can
use the term lay witnesses here, the three of you in the
middle. It was absolutely terrific. It was uplifting to hear
all of your testimony. The diversity that is shown by your
presence is, again, emblematic of the United States of America.
And, Ms. Al-Suwaij, you coming from Iraq and your comments
are particularly meaningful, and I would hope that you can wear
the hijab everywhere all the time in public anytime and proudly
in the United States and at work, whether at work or elsewhere.
I am impressed very much with the bipartisan nature of this
bill. The authors of the bill not sitting exactly in the same
place in our political spectrum speaks an awful lot to the
concerns that are here.
And, again, to the witnesses for a terrific testimony,
great compelling stories. And, of course, as always, from
Professor Norton, terrific insight. Mr. Gray, we are very glad
to have you and Mr. Foltin as well.
But, Mr. Gray, you seem to be the only representative here
for the employers' concerns, the business concerns. I have a
couple of minutes. I just want to go to a couple of questions.
One, I thought your testimony talking about the framework
and its comparison with the language of WRFA and the Americans
with Disabilities Act was very interesting, where you pointed
out, for example, that accommodation of the ADA is designed to
enable an employee to work whereas religious accommodations
excuse employees from their jobs, a distinction that may not be
readily apparent to everyone.
And in your testimony, you spent a great deal of time
talking about undue hardship, identifiable increased costs,
some of the same issues that Professor Norton was talking about
perhaps from a different perspective. So I have two questions
if I can get them in.
One is, with respect to the reasonable accommodation-undue
hardship issue, could you expand a little bit on the
differences in the language in WRFA and in ADA?
And then my second question--I will just get to it now so
you can try to squeeze them both in--from the employer's
perspective, what would you view as the biggest concern of
employers with WRFA language as it is now?
Mr. Gray. Thank you, Congressman Kline.
With respect to your first question, the language within
WRFA adopts the ``essential functions'' of the job, adopts
``undue hardship,'' adopts a lot of the terminology of the ADA.
However, as I was alluding to in my initial comments, it is
very difficult to take situations talked about by other folks
here and try to put an identifiable cost on them.
In the ADA's context, companies are able to look at the
particular cost, make a determination whether or not it
provides an undue hardship, and then make the different
determination. The issues that Professor Norton talked about,
the effect on other employees within the workplace, much more
difficult, and the language within WRFA does not provide for
evaluation or that type of balancing of those costs, and you
actually could lead to a situation where you are favoring one
religious person within the workplace as opposed to others.
With respect to your second comment, I think the largest
concern on behalf of employers is the cost and the disruption
to the workplace, though well intended, but the disruptions to
the workplace that businesses, small and large, as noted
earlier, 15 employees on up, will feel in trying to adopt the
terms within WRFA. It was done initially to try to clarify
post-Hardeson the burdened companies face.
However, it does not go as far as it needs to to clarify
that. So I think, in answer to your question, the cost in
disruption to the workplace, I think, is the biggest concern of
employers throughout the United States, as the language is now.
Mr. Kline. Okay.
Thank you very much, Mr. Chairman. I yield back.
Chairman Andrews. I thank my friend.
The Chair is proud to recognize one of the two authors of
the bill, the gentlelady from New York, Ms. McCarthy.
Mrs. McCarthy. Thank you, Mr. Chairman.
Before I ask my questions, I want to thank Chairman Andrews
for working with me and holding these hearings.
And I do understand the issues that are facing each and
every one of you, and it was making me think that for the first
time in 14 years, I was able to get a gun safety bill passed
through this House and the Senate and the president signed it
in January, and the reason I got it passed was because I worked
with the NRA. Now that is a very, very odd relationship, the
NRA and me.
What I am trying to say is from hearing and listening to
your testimony, we are not that far apart on what we can do to
accommodate, to make this a bill that can, in my opinion, help
the American people, all Americans, all people, and so I think
there is something that we can work with.
You know, that is why we have hearings like this so that we
can hear the concerns of those that have the concerns and try
and see if we can come up with the language to accommodate
everybody so that, in the end, hopefully, we will have a good
bill because there are problems out there.
And in New York, as Mr. Standish has said, we have been
doing it. We have worked at it. We have seen the complaints
come down. So it is not a difficult situation.
So, with a question to Mr. Standish--and, actually, Richard
Foltin--certainly, Mr. Gray, if you would like to come in on
that--being that the supporters of WRFA are willing to add
language indicating that the provisions are not to be
interpreted in a manner that will result in harm to third
parties, I think that is something that we can try to work out
together. Would you be----
Mr. Foltin. Yes. Thank you, Congresswoman.
Let me say that, first of all, I think as a preliminary
matter, the groups that have formed the coalition, we do not
agree with some of the analysis in terms of what WRFA would do,
and I think if one looks at the cases, one finds remarkable
consistency.
The kinds of cases Professor Norton has talked about, which
have been decided negatively, have not turned on the fine point
as to whether or not there is a de minimis cost to the employer
or not. It has really been quite striking at how strongly they
speak about how no employer could be possibly expected to have
to deal with a workplace where employees are degrading one
another or essential services are being denied.
But, having said that, we all understand that no piece of
legislation is perfect and that there are things that are clear
to one party, may not be clear to another, and so it may well
be--in fact, it is the case--that speaking for the coalition,
we are very prepared to seek ways to clarify this legislation
so as to remove the possibility of the bill being interpreted
in a way that would be unfair to third parties or to other
employees.
Having said that, Congresswoman, I think one of the
problems in getting there from here has been the approach that
has been taken, frankly, by some of those who have raised those
concerns. That is that they have not been simply interested in
the kind of clarification that Professor Norton has spoken
about, but have really wanted to write out of this legislation
the ability of some Americans to come to court to even try to
make the case how they can be accommodated without harm to
third parties or other employees, and that, I think, from our
perspective is an untenable approach.
If we can get to the place where we agree that perhaps by
adding provisions to the ``undue hardship'' definition so that
it is clearer than it is now for those that are concerned, that
it is an undue hardship if third parties are materially harmed,
services are materially delayed, or made unavailable, if it is
made an undue hardship criterion that there is a disruption in
the workplace, if we can agree that those are the kinds of
approaches that ought to be taken, then I think that there is a
way to go from here.
Mrs. McCarthy. And I agree with you on that. You know,
again, certainly listening to Professor Norton, I think there
is a way of accommodation. I also know that in a perfect world,
we can sit down and negotiate and come out probably with the
right words. I also know through this committee work and
certainly the committee work on the Financial Services if we
come out with a bill and no one really is complaining, but no
one is really happy with it, basically, it is usually a good
bill. That is the way things go around here.
But, with that being said, I am sure this committee will
continue to work on it. I think it is a good bill. I already
know it is working in New York, and I think we can make it
accommodating for the rest of the country.
Mr. Standish, do you have any----
Mr. Standish. I agree with you, and as Mr. Foltin
indicated, we are willing to negotiate. The trick here is who
are we negotiating with and when is the deal done because there
are opponents to WRFA who will not be happy unless it is a
restricted bill that only covers religious beliefs that they
believe are innocuous. In other words, it creates a two-tiered
system where some religious beliefs or practices get
preferential treatment over others. That is a non-starter.
However, adding clarifying language, I think, is absolutely
very, very doable, as long as we can be assured that we are
negotiating with the folks who are in the position to make a
deal without sort of making concessions and then still having
the same opposition we already have currently.
Mrs. McCarthy. Thank you.
And I am looking forward to working with this committee to
clarify certainly the third party, and, hopefully, we can get
that done.
Thank you.
Chairman Andrews. I thank the gentlelady, and I thank her
for the spirit of her questions. I mean, I think it is very
significant that Mr. Souder, who is a devout Republican and a
very conservative member, and Ms. McCarthy, who is a moderate
Democrat from Long Island, a devout Democrat----
[Laughter.]
Chairman Andrews [continuing]. Have worked together on
this. I think we have had very legitimate issues raised from
the employers' point of view, from the point of view of
protecting civil liberties of others, and I think it is quite
possible we can work together and get this done.
So I also hear Mr. Standish. We sort of have a rule when it
comes to negotiation. We trade ideas for votes, to be perfectly
blunt, and, you know, if people want to be part of a
discussion, they need to get on board and vote for it. So that
is the way it works.
The Chair recognizes the gentlelady from California, Ms.
Sanchez, for 5 minutes.
Ms. Sanchez. Thank you, Mr. Chairman.
And I want to apologize to the panel if some of these
questions have been asked. I have been running in and out, but
I have had an opportunity to look at the written testimony.
And, Professor Norton, I specifically appreciate the
concerns that you have raised about the impact of the Workplace
Religious Freedom Act that it may have in circumstances where
an employee's requested accommodations conflict with another
person's civil or reproductive rights. I personally do not want
to see a woman be denied birth control, for example, by a
pharmacist or lectured by an ultrasound technician, but I also
do not want to see employers discriminate against employees for
their religious beliefs.
Can you clarify the difference under current law between
the clear rule that employers cannot discriminate based on an
employee's religious belief and the very different rule with
different standards governing an employer's responsibility to
make affirmative accommodations for an employee's religiously
felt need to, for example, proselytize about white supremacy in
the workplace or call a woman seeking birth control a murderer?
Ms. Norton. Certainly, Congresswoman. Title VII with
religion basically requires employers to do two things. First,
it makes clear that employers may not discriminate against an
employee because of their religious belief, their state of
mind, what they believe to be true as a religious matter, nor,
of course, may they discriminate against an employee because of
his or race, color, sex, or national origin.
Title VII, after the 1972 amendments, also created an
additional duty on employers with respect to religion only of
the five classes protected under Title VII. It made clear that
employers also have a duty to reasonably accommodate the
religious practices, the act, the behaviors, the observances of
an employee unless to do so would create an undue hardship. And
among other things, one of the things that we are wrestling
here today with is how broadly or how narrowly should ``undue
hardship'' be defined for these purposes.
But that is a balancing inquiry. An employer, you know, has
an absolute duty not to discriminate against an employee
because of his interreligious beliefs, no matter now unfamiliar
or incomprehensible or even disagreeable he or she finds them.
So, for example, one court, correctly in my view, found
that an employee could not under Title VII demote an employee
once the employer found out that this employee was a member of
the Church of the Creator. The employer found those religious
beliefs repugnant, as do I, but, nonetheless, Title VII
protects freedom of conscience.
On the other hand, if that employee had asked for an
accommodation allowing him to proselytize in the workplace, to
share his views about white supremacy in the workplace as a
matter of religious conscience, I believe that certainly under
current law the employer would not have to do so because that
would surely impose more than a de minimis hardship on the
employer and its coworkers, and what we are trying to figure
out is to predict what would happen if we changed the undue
hardship standard.
Ms. Sanchez. Thank you.
In 2004, an employee sued Hewlett-Packard for terminating
him after he refused to remove antigay posters from his
workstation. The plaintiff claimed that Hewlett-Packard engaged
in disparate treatment by terminating him because of his
religious views and that the company failed to accommodate his
religious beliefs.
The case was resolved to uphold the company's reasonable
workplace policy, and knowing the facts of this particular
case, how do you believe it might turn out differently if the
proposed WRFA standards were applied?
Ms. Norton. The answer is I do not know, which is why I
would love to see a clarification. We know how it comes out
under the current standard. We know that the employee lost and
the employer was not required to abandon its diversity
campaign, nor was it required to allow this employee to deliver
what the employee conceded were hurtful messages about
homosexuality in the workplace and his effort to try to change
other people's behavior. We know how it turns out under the
current standards.
This bill proposes to change that standard substantially in
order to change outcomes in a number of cases, and I agree that
we should change the outcomes in a number of cases. It is too
hard for workers to get their religious practices accommodated
in the workplace, but I do not know if it would change the
outcome in that particular case, and if it would, I would find
that troubling.
Ms. Sanchez. Thank you.
My last question for Mr. Foltin. In explaining your current
version of WRFA in your written testimony, you indicate that
the claim of a pharmacist who is fired because he chooses not
to dispense birth control or emergency contraception would not
be sustained under WRFA, and you explained that for the
customer whose prescription is not filled, this would
constitute a possible significant difficulty or expense.
My concern is whether or not under WRFA as written, the
court could take into account the difficulty to the customer as
opposed to merely the difficulty of the employer. It is not
clear to me that the language of the bill requires or even
permits a court to consider the difficulty to the customer, and
assuming that the employer lost only a few customers a year due
to his employee's religious beliefs, might a court find that
the employer did not face an undue hardship?
Mr. Foltin. Thank you, Congresswoman. I think a response to
that is that, in terms of whether there is an undue hardship
and what would be an undue hardship under WRFA, an inability of
the employer to provide the service or product that it is in
the business of providing will be an undue hardship so that I
think it falls well within the criteria that we have placed
within WRFA that, in fact, where the employee would be put in
that position and these third parties, this clientele, were
being turned away that, therefore, there would be an
opportunity, were the clients held to be denied the service.
Now, on the other hand, what we do think WRFA does
strengthen is the obligation of the employer to try to find a
way to accommodate the employee in a way that does not harm
those third parties, and in doing that, it does very much what
the American Pharmacist Association says the correct policy
should be, which is that they support the ability of a
pharmacist to excuse him or herself from certain activity, but
also they believe that comes with the responsibility for the
pharmacy, for the company to assure patient access to legally
prescribed therapy, and we believe that is the correct result.
Sometimes the employee will not be able to be accommodated,
and in that case, clearly, that employer under the current law
and under WRFA will still be entitled to require that employee
to provide the service.
Ms. Sanchez. If I could, Mr. Chairman, I request 30
seconds.
Chairman Andrews. Yes, we will indulge in one more
question.
Ms. Sanchez. Thirty seconds?
Chairman Andrews. Sure.
Ms. Sanchez. It is just a follow-up question.
So, in your understanding, undue hardship would include
even the lost of just client who was refused services?
Mr. Foltin. Yes, I think that if a client is being turned
way, if the business is providing a service and you are not
able to provide that service, that is an undue hardship for the
employer because it is not going to play out just in the one
case. It is going to play out on an ongoing basis.
Ms. Sanchez. Thank you very much.
Chairman Andrews. I appreciate it. It strikes me in
listening to the excellent questioning from both sides that
there is a pretty broad consensus on intention here. There may
be some disagreement over whether the language accomplishes
that intention, how it might better do so, but I thank the
gentlelady for her very elucidating questions.
The gentleman from Pennsylvania, Mr. Sestak, is recognized
for 5 minutes.
Mr. Sestak. Thank you very much, Mr. Chairman.
Ms. Norton, I really enjoyed everyone's testimony, but, in
yours, you talk--and I agree about liking the concepts behind
this bill--about targeted approaches. You do not in your
testimony--and I do not think in the written either that I
could find--talk about the language of accommodating tangential
or temporary impacts upon job performance in that this bill
would let you accommodate that. Could you speak to that
because, in my mind, I thought some not insignificant concerns,
and I am not sure anybody even addressed that language here. It
may bode more of a problem than maybe the word ``undue
hardship.''
Ms. Norton. Certainly, Congressman.
As written, H.R. 1431 creates a duty of reasonable
accommodation only with respect to an employee who can perform
the ``essential functions'' of the job with or without
reasonable accommodation, and this leaves employers free to
argue that the inability to perform a certain job duty, like
dispensing contraceptives or something like that, for religious
reasons means that an employee cannot perform the job's
essential functions.
But--I think this is what your question goes to--the bill
goes on to provide that this ability to perform essential
functions should not be considered compromised by practices
that only have a temporary or a tangential impact on the
ability to perform job functions.
And as far as I know, this phrase does not appear in any
other federal statute, so it is hard to predict with any
confidence how it would play out, and it does invite some
questions--at least it is hard to predict with confidence how
it would play out.
For example, would it require accommodation of a
pharmacist's request to decline to dispense contraceptives, if
contraceptives only make up a small portion of that pharmacy's
sales? Or would it require an employer to accommodate a nurse's
request not to participate in tubal ligations or vasectomies,
if those services turned out to be only a small percentage of a
hospital's services?
It is not clear to me, and I would be happy or I would feel
more confident about how this is all going to play out if it
were clarified.
Mr. Sestak. Clarified that phrase also, as well as undue
hardship?
Ms. Norton. Yes, sir.
Mr. Sestak. Mr. Foltin?
Mr. Foltin. May I just comment on that?
Mr. Sestak. Yes. I knew you were going to jump in there.
Mr. Foltin. First of all, if we are dissecting the
essential functions language, I think it stands for the
principle no good deed goes unpunished because that language
was put in in an effort to meet concerns coming from the
business community which had pointed out that there was no
essential function language in existing religious accommodation
law, unlike the Americans with Disabilities Act.
If I say in the business community, I am not going to get
to my esteemed colleagues here to my left.
But I think the essential point about the essential
functions provisions sort of provide the threshold. That is it
is the definition. You do not have to go into the reasonable
accommodation-undue hardship analysis of whether or not the
employee is going to receive the accommodation if you can show
that they are not able to fulfill the essential functions of
the job.
In other words, you do not have to hire unqualified
employees and you also do not have to hire, for instance, a
person who is being hired to be a weekend night watchman when
we know they are a Sabbath observer and they are not going to
be able to work either Saturday or Sunday.
So whatever that language may mean--and it was put in to
deal with concerns about Holy Day observance and not allowing
employers to say in the larger context if that is a per se bar
to providing accommodation, it is simply a threshold.
So the concerns about the pharmacy, for instance, will
still need to be resolved even if the employee were to be found
to be able to fulfill the essential functions of the job in the
context of the undue hardship and reasonable accommodation
analysis.
Mr. Sestak. I appreciate that and also the phrase no good
deed goes unpunished. However, the phrase I am most concerned
about with this language, which is actually raised in one court
case. is the phrase that someone could use this language for
heaven can wait, and that is used persistently in the sense to,
you know, permit the pharmaceutical person to say, you know,
``It tangentially impacts the job of the pharmacy, if you are
able to interpret now saying, ``That is just a tangential part
of my job. So, therefore, I can accommodate that in my
pharmacy.''
Ms. Norton, you know what I am saying here.
And so I am struck more by this is a good bill, a needed
bill, and I was struck when we got our first Muslim on my first
command of a ship, a small boat, only about 100 men, and we had
to begin to find out--and there is no room on there for
religious services--where could he practice to pray to Mecca
enough times of day in privacy? So accommodation needs to be
done. I am just taken that it probably needs strengthening of
words and clarification for both undue hardship and this
phrase.
Thank you.
Chairman Andrews. I thank the gentleman.
I want to extend my appreciation and the committee's
appreciation to the witnesses. The testimony was well thought
out, very helpful to the committee, as was the first panel, for
those that are still here.
As the committee proceeds on its deliberations, I am
certain that we are going to call upon you for further advice
and guidance, as we try to work through these problems. I want
to express my appreciation again to the witnesses for traveling
a great distance, putting in a great deal of preparation, and
showing us the way the process is supposed to work.
Many people think that American politics is about battles,
and sometimes it needs to be, but when it is at its best, it is
about the exchange of ideas, refinement of positions, and I
think you have given us a great opportunity to do that today.
I would ask my friend, the ranking member, for any
concluding comments he may have.
Mr. Kline. Thank you, Mr. Chairman.
Again, my thanks to the witnesses. It was really a great
panel.
It is incumbent upon us as we are, in fact, creating law,
making statutes, that we be as clear as we possibly can to the
points that were raised by Professor Norton and others. We
would like the statute to come out and be clear so everybody
knows where they stand, and it is always a challenge here. No
matter how many lawyers we have up here or out there, it is
always a challenge to get it right here and, frankly, not to
leave it to all those lawyers to try to sort out what we meant.
So I think there is more work to be done here.
Again, I am heartened by the sort of bipartisan approach
that we need to do something here. As is always the case, we
want to do it right.
So, again, thanks to the witnesses.
Thanks to you, Mr. Chairman.
Chairman Andrews. Thank you as well.
As previously ordered, members will have 14 days to submit
additional materials for the hearing record. Any member who
wishes to submit follow-up questions in writing to the
witnesses should coordinate with the majority staff within
seven days.
Without objection, the hearing is adjourned.
[The statement of Mrs. McCarthy follows:]
Prepared Statement of Hon. Carolyn McCarthy, a Representative in
Congress From the State of New York
Thank you Mr. Chairman and fellow members of the subcommittee. I
welcome the opportunity to testify about the Workforce Religious
Freedom Act (``WRFA''). I would first like to thank my colleague, Mr.
Souder. We have worked closely on this bill and garnered bipartisan
support for it. This bill simply stated is pro-business, pro-faith and
pro-family. It is an important piece of legislation and its passage is
long overdue.
I felt the need to get involved-with over 40 diverse organizations-
in favor of this legislation because I have heard of many individuals
who are forced to choose between their job and their religion. Nowadays
we have a 24 hour, 7 day a week work environment that clashes with
religious observances. And unfortunately since 9/11 our Muslim and Sikh
friends have been the target of backlash.
Our great nation was founded under the principles of freedom,
including religion. We as members of Congress have a responsibility to
ensure people are able to freely practice. Asking a person to leave
their religion at their door is impossible and something they should
not be asked to do.
In 1964 Congress realized the importance of religion to workers by
providing Title 7 of the Civil Rights Act. Simply stated employers are
not allowed to discriminate based on race, gender, color and religion.
Employers must reasonably accommodate employees' sincerely held
religious practices unless doing so would impose an undue hardship on
the employer. But as the courts began to rule on cases they ruled that
most ``hardships'' are an ``undue hardship.'' This has left religiously
observant workers with little legal protection.
WRFA will reestablish the principle that employers must reasonably
accommodate the religious needs of employees. It would redefine undue
hardship as something that imposes significant difficulty or expense on
the employer or that would keep an employee from carrying out the
essential functions of the job. An important point to make is that
third parties would not be adversely affected. I have been hearing and
reading a lot regarding the bill from organizations, which I agree with
a majority of the time, that third parties would be affected. I am a
pro-choice member of Congress and believe a woman should be able to
choose what happens to her body especially in case of an emergency.
This legislation would not prevent a woman from receiving an emergency
abortion, obtaining birth control medication or emergency
contraceptives.
For example, if a nurse has a religious objection to participating
in an emergency abortion she would not be covered under WRFA.
Performing an emergency surgery is an essential function of nurse's
job. A court would not hear a case brought by a nurse, who feels
wrongly dismissed by a hospital because the nurse walked away from a
patient in need of emergency care. A patient who is suffering places a
significant burden on a hospital and the hospital would have to assist
them. If a woman goes to an abortion clinic she can be subjected to
violence and threats. Unfortunately there has been a need to have the
clinics protected. This law would not allow a clinic to be unprotected.
If a police officer had a religious objection with guarding the clinic
his request for removal is accommodated as long as a replacement was
possible. If not, then the officer must accept the assignment. Another
concern I have heard regarding the bill is women would have difficulty
obtaining birth control because this bill would protect a pharmacist
who feels it is against their religion from filling the prescription.
Currently, The American Pharmacists Association's policy is that
pharmacists can refuse to fill prescriptions as long as they make sure
customers can get their medications some other way. This is exactly the
point of the legislation!! This bill would allow a pharmacist who has a
strong religious objection to filling the prescription from doing so
without any affect on the individual. A woman would still receive her
prescription.
I'd like to point out that the bill does not apply to employers who
have fewer than 15 employees. This protects against circumstances in
which an employer would not have the personnel in place or is located
in a rural area. So, for example, a pharmacy would operate under their
association's policy. It is time to allow people to once again practice
their religion without fear of losing their job.
Once again I thank you for the opportunity to talk about
legislation that is pro-business, pro-faith and pro-family. I welcome
any questions you may have.
______
[Additional submissions of Mr. Kline follow:]
------
[Statement of the HR Policy Association may be accessed at
the committee website's following address:]
http://edlabor.house.gov/testimony/2008-02-12-HRPolicyAssociation.pdf
______
[Whereupon, at 5:10 p.m., the subcommittee was adjourned.]